If you’ve been around the ediscovery space long enough, you’ve likely heard the term “drive-by meet and confer.” It’s what happens when counsel shows up to a Rule 26(f) conference unprepared, without the necessary knowledge from their client, and with no intention of meaningful discussion—completely missing the purpose of the exercise.
This week’s Case of the Week highlights what happens when you take that lack of preparation one step further.
In Wilbert v. Pyramid Healthcare, Inc., United States Magistrate Judge Scott Hardy delivers a thorough and blistering takedown of plaintiff’s counsel for his refusal to meet and confer in good faith—and then misrepresenting those efforts to the Court. This case is a must-read for every litigator navigating ESI.
The Case
The plaintiff filed a pregnancy-based discrimination and harassment claim that led to her termination. As the case moved forward, the parties consistently failed to align on how to approach discovery of electronically stored information (ESI). What brought this dispute to a head was a motion to compel filed by plaintiff’s counsel, Attorney Joshua Ward.
Let me be clear—this decision is not about the technicalities of a production format or the language in a privilege log. This is about the failure to follow the rules, failure to cooperate, and failure to act in good faith—each of which can cost your client dearly.
The Court began with a detailed discussion of the Federal Rules—Rule 26 on relevance and proportionality, Rule 37 on discovery disputes, Rule 401 on relevance—and emphasized the foundational role of the meet and confer process. The Court also highlighted the obligations under the Western District of Pennsylvania’s Local Rule 2.6, which requires counsel to investigate their clients’ ESI systems before meeting and conferring with opposing counsel.
The Breakdown
Instead of engaging collaboratively, plaintiff’s counsel served 25 ESI-specific RFPs alongside a 30-page firm-created ESI plan that demanded rigid compliance from opposing counsel. The plan even required the defendant to hire a third-party vendor for collection—something far beyond what the local rules or the Federal Rules require.
Worse yet, the document was titled “Mandatory Rule 26(f) ESI Plan.” The Court was not amused. Judge Hardy found that the use of “mandatory” demonstrated an intent to impose unilateral, non-negotiable protocols, which is entirely contrary to the cooperative spirit required under Rule 26.
And then it got worse.
Despite the Court’s explicit order to confer meaningfully, plaintiff’s counsel did not engage with opposing counsel in good faith. Defense counsel attempted to engage. Attorney Ward either ignored them or imposed conditions—such as insisting on recording any in-person conference—that made cooperation impossible.
Nonetheless, he submitted a certificate of conferral with his motion, as required by Rule 37(a).
That’s where the Court drew the line.
The Ruling
Judge Hardy denied the motion to compel and issued an order for Attorney Ward to show cause why he and his firm should not be sanctioned. The Court found that:
- The ESI requests were overly broad, not tied to specific claims, and disproportionate.
- The ESI Plan imposed unreasonable and unilateral demands.
- Plaintiff’s counsel failed to identify custodians or explain relevance.
- The conferral process was used as a negotiation tool, rather than a genuine effort at resolution.
- Counsel misrepresented his efforts to confer in good faith.
Let this quote from the opinion sink in:
“The conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process or requested item... Such obdurate behavior lacks justification, defies the bounds of expected professional behavior, and was seemingly deployed to harass Defense Counsel and thwart any meaningful and constructive attempts at resolving the parties’ disputes.”
Lessons for Litigators
This decision lays out a roadmap of what not to do—and reminds us of what’s required to do things right.
- Know your rules. Both local and federal. Bookmark them, print them, keep them at your fingertips. Use them as your roadmap for strategy.
- Train your team. If you’re giving attorneys internal guidance or protocols, make sure they understand how to apply them appropriately. Templates and checklists are great—but not when blindly applied.
- Conferral is not a formality. It’s where meaningful discovery strategy starts. Cooperation doesn’t mean giving in—it means understanding how to get what you need within the bounds of the rules.
- Don’t fake ediscovery competence. Judges can tell. Opposing counsel can tell. And eventually, your client (and the Court) will, too.
While I appreciate that plaintiff’s counsel in this case was trying to systematize how to handle discovery in employment matters—that’s a smart idea in principle—it all comes down to execution. And here, execution fell flat. The Court saw through the tactics, and now the attorney is facing potential sanctions.
Final Thought
Litigation is adversarial. eDiscovery doesn’t have to be.
In fact, the more confident you are in your ESI knowledge, the easier it is to collaborate—and still advocate effectively for your client. Knowing the rules, the case law, and the court’s expectations helps you stand your ground when necessary and concede where appropriate.
We can’t afford to treat the meet and confer like a checkbox. It’s a strategic opportunity—when done right.
