The federal meet and confer requirement obligates you to contact opposing counsel and make a genuine attempt to resolve a dispute before asking a judge to intervene, then certify in writing that you did so. Under the Federal Rules of Civil Procedure, this duty applies expressly to motions to compel and motions for protective orders, but most federal district courts have local rules that push it much further. Skip it, do it halfheartedly, or misdescribe it in your certification, and the court can deny your motion and order you to pay the other side’s attorney fees even if you would have won on the merits.
Which Motions Trigger the Requirement
Two Federal Rules of Civil Procedure impose the conferral duty directly. Rule 37(a)(1) requires that any motion to compel disclosure or discovery include a certification that the movant “in good faith conferred or attempted to confer” with the non-complying party. The same certification is required under Rule 37(d)(1)(B) for sanctions motions when a party skips its own deposition or refuses to respond to interrogatories or inspection requests.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Rule 26(c)(1) applies the same duty to motions for a protective order.2Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (c) Protective Orders
Both federal rules target discovery. There is no across-the-board federal conferral duty for every motion. That broader obligation comes from local rules, and it varies sharply by district.
Some districts require conferral before nearly every civil motion. The Middle District of Florida requires a good-faith conference before any civil motion except those seeking Rule 11 sanctions, injunctive relief, judgment on the pleadings, summary judgment, or class certification.3United States District Court Middle District of Florida. Local Rule 3.01 – Motions, Briefs, and Other Legal Memorandums The District of Minnesota carves out only temporary restraining orders and summary judgment motions, so even a motion to dismiss requires a prior conference there.4United States District Court District of Minnesota. Local Rule 7.1 – Civil Motion Practice Timing rules also differ: the Central District of California, for example, requires the conference to occur at least seven days before filing. And judges can impose their own conferral requirements through scheduling orders under Rule 16(b), including a rule that a party must request a conference with the court before filing any discovery motion.
Before drafting any motion in federal court, pull up your district’s local rules and the assigned judge’s standing orders. The conferral obligation you actually face may be considerably broader than Rules 37 and 26 alone suggest.
A narrow set of proceedings sits outside the standard discovery framework entirely, including administrative record review, federal forfeiture actions in rem, habeas corpus petitions, pro se prisoner actions, administrative summons enforcement, government benefit recovery actions, federal student loan collection, ancillary proceedings, and arbitration award enforcement. Rule 26(a)(1)(B) lists them, and Rule 26(f)(1) incorporates the same list.5Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (f) Conference of the Parties; Planning for Discovery Even in an exempt case, though, a court can still order the parties to confer on specific issues.
What Good Faith Conferral Actually Requires
The phrase “in good faith conferred or attempted to confer” is not a formula to recite. Courts read it strictly, and a perfunctory email demanding compliance does not satisfy it.
Method: Live Conversation, Not Correspondence
Federal courts overwhelmingly expect a real-time, interactive exchange. Multiple districts have held that letters, emails, and faxes do not qualify as a meaningful conference. The Southern District of California requires in-person meetings when counsel are in the same county and telephone conferences otherwise, and specifically bars written correspondence as a substitute. The Eastern District of Texas treats “correspondence, e-mails, and facsimile transmissions” as inadequate evidence of good faith. Courts elsewhere have ordered parties to meet face-to-face after finding that written exchanges did not amount to a real discussion.
The reasoning is practical. Written exchanges let each side stake out positions. A live conversation forces engagement, and engagement is where compromise happens. If your local rules and standing orders are silent on method, use a phone call at minimum.
Substance: Issue by Issue, With Preparation
Content matters as much as method. Attorneys are expected to discuss each disputed item individually, explain the legal and factual basis for their positions, and respond to the other side’s specific objections. Blanket statements like “we object to all requests” or “please produce everything” will count against you if the dispute reaches a judge.
One federal court described the standard this way: parties should confer “with the same detail and candor expected in the memoranda they would file with the court on the discovery dispute.” Come prepared. Walk out of the conference with a clear picture of what is resolved, what remains contested, and what each side’s position is on the contested items.
Document as you go. Note the date, time, duration, participants, and topics discussed. Those details feed directly into your certification and protect you if the other side later claims the conference never happened or was inadequate.
When Opposing Counsel Won’t Respond
The rules anticipate this. Both Rule 37(a)(1) and Rule 26(c)(1) require that you “conferred or attempted to confer,” and that second phrase exists so you are not held hostage by a silent adversary.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions You do have to show real effort, though.
Keep a log of every attempted contact: dates, times, phone numbers, email addresses. Send a follow-up communication stating that you are trying to satisfy the meet and confer requirement and intend to file if you cannot reach them. Two or three documented attempts spread over a reasonable window will generally be enough. When you file, describe each attempt specifically in the certification rather than saying you “tried to confer.” Judges respond well to a movant who clearly tried; they respond poorly to one who fired off a single email late Friday and filed Monday morning.
Silence from the other side may also hurt them at the fee stage. Under Rule 37(a)(5), a court granting a motion to compel must generally shift fees to the losing party unless that party’s position was “substantially justified.” Refusing to participate in the conferral process makes that argument harder to sustain.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
What the Certification Must Contain
After the conference, the moving party attaches a written certification to the motion. This is not a formality. Motions arrive at the intake stage without one and get bounced; judges deny motions whose certifications are too vague to mean anything.
A workable certification includes:
- The date and time of the conference
- The names of the attorneys or parties who participated
- The method — in person, telephone, or video
- A specific description of the disputed matters discussed
- Which issues were resolved and which remain contested
- An affirmative statement that the movant conferred in good faith and was unable to resolve the dispute without court action
Many district courts publish an official certificate of conference form. Using the court’s own template ensures you hit every required field for that jurisdiction. Where no template exists, draft a declaration that tracks the language of Rule 37(a)(1) and covers the items above. Some local rules require the certification to appear within the body of the motion itself, often on the first or second page, so check filing requirements before uploading.
The certification’s narrative should connect directly to the motion. The judge needs to see that you discussed the specific relief you are now requesting, not some tangentially related topic. That link is what proves the conference was genuine rather than performative. A certification that simply states “the parties conferred and could not agree” invites a denial.
What Happens if You Skip the Requirement
The consequences run beyond the annoyance of having to refile.
Denial or Striking of the Motion
A motion filed without a required certification, or with one the court finds inadequate, can be denied without prejudice, meaning you may refile after actually conferring. In more serious cases, the court can strike the motion, effectively erasing it from the record. Either outcome is dangerous if you are working against a deadline.
Mandatory Fee-Shifting, Both Directions
Rule 37(a)(5) creates a mandatory fee-shifting framework that applies whenever a motion to compel is decided.
If your motion is granted, the court must generally order the non-complying party, their attorney, or both to pay your reasonable expenses, including attorney fees. There is a critical exception: the court will not award expenses if you filed before making a good-faith attempt to obtain the discovery without court action.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Skipping the conferral doesn’t only risk denial. Even winning on the merits, you forfeit your right to recover costs.
If your motion is denied, the framework runs the other way. The court must order you, your attorney, or both to pay the opposing party’s reasonable expenses for defending against the motion, unless the motion was “substantially justified” or an award would be unjust.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Broader Sanctions
When a party fails to participate in discovery altogether, such as skipping its own deposition or refusing to respond to interrogatories, the sanctions escalate. Beyond mandatory expense awards, a court may treat contested facts as established, bar the non-complying party from raising certain claims or defenses, strike pleadings, stay proceedings, dismiss the case, or enter default judgment.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The certification requirement applies to those sanction motions as well.
Don’t Confuse This With the Rule 26(f) Planning Conference
Federal practice includes a separate, earlier conference that sometimes gets mixed up with the motion-specific duty. Rule 26(f) requires the parties to meet and develop a joint discovery plan at least 21 days before the Rule 16(b) scheduling conference or order deadline.5Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (f) Conference of the Parties; Planning for Discovery That conference is about the overall scope and timing of discovery, not about resolving a particular dispute, and it carries its own fee-shifting sanction under Rule 37(f) for parties who fail to participate in good faith.1Legal Information Institute. Federal Rule of Civil Procedure 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Satisfying Rule 26(f) does not satisfy the pre-motion duty under Rule 37(a)(1) or Rule 26(c)(1). Each dispute needs its own conference.