The Rule 37(a)(1) Good-Faith Certification
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.
Rule 37(a)(1) makes the certification a condition of the motion, not a courtesy:
The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
Rule 26(c)(1) imposes a parallel requirement on a motion for a protective order. A motion without an adequate certification can be denied on that ground alone, and frequently is.
”Conferred or attempted to confer”
Two routes, and the second matters. If the other side will not engage at all, you are not stuck — you certify the attempt. What you need is evidence that the attempt was real: dated, directed at the specific discovery in dispute, and allowing a reasonable opportunity to respond.
The failure mode is a certification that recites the rule’s language and nothing else. “Counsel have met and conferred in good faith and are at an impasse” tells the court nothing it can evaluate, and a court that cannot evaluate it will often deny the motion without prejudice and tell you to go and actually confer.
What courts treat as good faith
The case law varies by district, but the pattern in orders is consistent. Courts credit conferral that:
- addresses each disputed item specifically rather than demanding global compliance — request 14 and request 22, not “your responses are deficient”;
- explains the deficiency so the other side can fix it;
- offers something — a narrowed date range, fewer custodians, a phased production — because an effort to resolve implies a willingness to move;
- allows a reasonable time to respond before filing; and
- continues far enough to identify what is genuinely deadlocked.
Courts discount conferral that was a single letter with a deadline, that happened after the motion was already drafted, or that never descended from general complaint to specific request.
There is a fee consequence too. Under Rule 37(a)(5), when a motion is granted — or the discovery is produced after it is filed — the court must ordinarily require payment of the movant’s reasonable expenses, but must not do so if the movant filed before attempting in good faith to obtain the discovery without court action. The conferral record is what decides that question.
What to put in the certification
Enough for the court to evaluate the effort without reading the whole exhibit:
- the dates and medium of each communication, and who participated;
- the specific requests or disclosures at issue;
- what the movant proposed, including any narrowing offered;
- what the responding party said, or that it did not respond; and
- what remains in dispute, and why it is deadlocked.
Attach the correspondence. A certification that describes a record and attaches it is materially stronger than one that characterises a phone call.
The evidentiary problem with phone conferrals
Most conferral happens by telephone, which is fine — and in several districts it is required. But when it comes time to certify, the record is a summary written by one side, from memory, after the dispute hardened. If the other side remembers it differently, you have two declarations and no way to reconcile them, and the court is left weighing characterisations.
That is a solvable problem. When the conferral runs item by item in writing — each proposal, each response, each acceptance timestamped as it happens — the certification stops being a recollection and becomes a description of a document the court can look at. Declined invitations and non-responses are part of that record too, which is exactly what you need for the “attempted to confer” route.
AsyncConfer produces that record as a by-product of doing the conferral: every proposal, counter, acceptance and comment is attributed and timestamped in a hash-chained log you can export and attach. If the matter never becomes a motion, you have lost nothing. If it does, the certification writes itself.