Meet and Confer Before a Motion to Compel
States the rules as of July 2026. This is a practical summary, not legal advice, and AsyncConfer is not a law firm. Rules, local rules and standing orders change — confirm against your court's current requirements before you rely on it.
Motions to compel are lost on conferral more often than on substance. The requests are good, the objections are boilerplate, the law is with you — and the motion is denied without prejudice because the court is not satisfied the parties genuinely tried to work it out.
This is the sequence that avoids that, and the record that supports it.
Before you start
Confirm what your court requires. Rule 37(a)(1) requires the certification. Your district may define conferral to require a live conversation — the Northern District of California does, expressly. Your judge’s standing order may require a pre-motion letter, a joint discovery letter brief instead of a motion, or an informal discovery conference before any motion is filed. Several judges require lead counsel personally.
Filing the wrong instrument is as fatal as filing without conferring. Check all three levels.
Be honest about the merits. Conferral works better when you are prepared to give something up, and you will confer more effectively if you have already identified which of your requests you would trade.
The sequence
1. Narrow before you write. Go through the responses and separate: items you will press, items you will drop, and items you will press in narrowed form. Dropping weak requests costs you nothing and materially strengthens the motion — a court reading a motion on six well-chosen requests reads it differently from one on thirty.
2. Write the letter, with proposals. Item by item: what is deficient, why you are entitled to it, and what narrowing you would accept. The letter structure matters less than the presence of an actual proposal on each item.
3. Give a reasonable deadline and offer times to confer. Propose specific dates. If a live conference is required, this is the step that later makes “they would not schedule it” credible.
4. Hold the conference. Work the list. Record what resolves as it resolves — not afterwards. Agreements reached on a call and written up a week later are the ones that get disputed.
5. Confirm in writing, same day. A short note setting out what was agreed, what was refused, and what remains open. This is the single most valuable document in the eventual motion, and it costs fifteen minutes.
6. Follow up once on silence. If they do not respond, one written follow-up before filing converts “movant filed without conferring” into “movant conferred and attempted to confer, and was ignored.”
7. File on what is genuinely deadlocked. Only that.
What the certification then says
Because you kept the record as you went, the certification can state facts rather than characterisations: the dates, the participants, the specific items, what was proposed, what resolved and what did not. See the Rule 37(a)(1) certification for what to include.
The fee exposure runs both ways here. Under Rule 37(a)(5), if the motion is granted — or the material is produced after it is filed — the court must ordinarily award the movant’s reasonable expenses, but must not do so if the movant filed before conferring in good faith. If the motion is denied, the court must ordinarily award expenses to the opposing party. The conferral record is what the court looks at in deciding both.
The failure modes
- Filing on everything. Thirty requests in a motion signals that no real narrowing happened, whatever the letter said.
- A conferral that never got specific. “Your responses are deficient” is not a conferral, and a court will say so.
- No proposal. A demand for full compliance is a position, not an attempt to resolve.
- Reconstructing the record at drafting time. Three weeks of calls and emails summarised into a declaration under deadline reads as exactly that — and if the other side’s declaration disagrees, the court has two characterisations and no document.
- Skipping the follow-up. A week of patience is cheap compared to a denial without prejudice.
Keeping the record while you confer
Every item above comes back to the same thing: whether there is a contemporaneous, item-level record of what each side proposed and refused. That record is hard to produce from correspondence, because correspondence bundles issues together and the per-item state of play has to be reconstructed by reading the whole chain.
AsyncConfer runs the conferral item by item, so each request carries its own proposal, response and timestamp. What resolved and what deadlocked separates itself as you go, and the whole exchange — including invitations that were declined and messages that went unanswered — exports as a hash-chained record you can attach to the motion. The certification stops being a recollection and becomes a description of a document.