Telephobia

Discovery meet and confer cannot be meaningful without real dialogue between the parties – and not by letter or email

2025 November

Did you know there is such thing as  “telephobia”? It’s a real thing. According to the NIH, telephobia is a kind of anxiety disorder in which the individual is afraid of either answering or making telephone calls. Sound familiar? How many lawyers pick up the phone and call opposing counsel? How many lawyers would rather write emails or letters (which they scan and send by email)? Why does it matter? Why am I talking about this in an article on discovery meet and confers?

The answer: I have an intense and compelling need to convince lawyers that meaningful discovery “meet and confers” cannot happen by sending snippy, snarky emails or letters; they have to occur the old-fashioned way, by human-to-human contact. Whether it is in person (as is required in federal court) or by video conference or by telephone, it is only when lawyers talk about the case, talk about the issues, that real progress can be made. After all, isn’t an Informal Discovery Conference nothing more than a conversation between counsel and the court? It’s people talking to people that matters – not letters and emails. People never talk the same way as they write. (Well, I do...except I can talk a lot faster than I can type.) When people talk, they are less formal, more relaxed (except those with telephobia), more open and importantly, they can listen.

“Meet and confers” by letter or emails are not human-to-human contact. They often not only don’t achieve the desired result, but they create conflict, push opposing counsel away, and sometimes they are downright mean and rude. Sometimes, even knowing that a judge will read the missive, they outright call the other lawyers vile names. Believe it, as judges, we see it all.

Is telephobia what is causing the lack of human-to-human contact? Some commentators see a trend among young people who grew up with texts, instant messaging, WhatsApp, WeChat, Discord, Flock. Slack, Facebook messenger (that is so 2010!), Signal, etc. who don’t know how to talk on the telephone and actually are fearful of doing so. Some are afraid they will say the wrong thing and can’t “erase” it or  “retrieve” it. Some have never learned phone courtesy. And frankly, some people are too lazy because sending a text or letter takes less effort. Even the  “old timer” lawyers (lawyers with 5-digit Bar numbers) have gotten used to communicating electronically.

What this has led to is a society that has moved away from human-to-human contact. This has carried over into the legal profession such that lawyers rarely talk to other lawyers, instead communicating by sending emails and letters. The lack of human-to-human contact is one of the reasons I believe that discovery disputes are hard to resolve by “meet and confers.” What is a meet and confer really? The first time in a civil lawsuit that there is a requirement for a meet and confer is prior to the first Case Management Conference in which CRC 3.724 requires “the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following: (1) Resolving any discovery disputes and setting a discovery schedule...”

Lawyers routinely check the box that they had a meet and confer but, when I ask, many times they have not. So, we know that the Judicial Council expects the lawyers to confer in person or by telephone.

Another example of a mandatory meet and confer which usually happens before discovery disputes is the requirement to meet and confer before filing demurrers and motions for judgment on the pleadings. Code of Civil Procedure sections 430.31 and 439 require  “[b]efore filing a demurrer [or motion for judgment on the pleadings...the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading. (1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” Not only does the law require an in-person, telephonic, or video-conference meet and confer, the statute actually tells the lawyers what they are supposed to talk about.

Compare that with our paltry discovery meet and confer rules. Code of Civil Procedure section 2016.040 states that  “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” What? No “in person, by telephone, or by videoconference”? No description of what you’re supposed to talk about? What about some guidance of what constitutes “reasonable and good faith”? One thing is for certain; arguing is different from meeting and conferring. Meeting and conferring is like a settlement negotiation; you have to compromise here and there. Nobody is always right or always wrong. Those subtleties are easier to handle in human-to-human contact. Human-to-human “meet and confers” are less likely to result in name calling. They also don’t result in people talking about boring legal authority. These “meet and confers” get to the heart of what is wanted and what can be given; that is a real meet and confer. 

To the credit of our Legislators, they also threw in that monetary sanctions can be assessed for failure to meet and confer (Code Civ. Proc., § 2023.020), even if you won your motion (Code Civ. Proc., §§ 2023.010, 2023.030). But that’s it! And that leads me to one of my pet peeves (actually, “peeves” is not a strong enough word).

Let’s go back in time to 1980. In 1980 we did not have the internet, emails, mobile phones, PCs, MMA. Many interesting things happened in 1980: China’s population hit one billion people, the Sony Walkman came out, PAC-Man was first released, Rubik’s Cube was invented, the U.S. boycotted the Moscow Olympics, and we lost John Lennon (RIP). The business world still used carbon paper, beepers, and people talked to each other on the phone using a Rolodex or phone book to find their number. Long-distance calls (in LA, calls to a different area code) cost a lot of money!

And in 1980, one of my least favorite appellate decisions, Leach v. Superior Court (1980) 111 Cal.App.3d 902, was published. Why is Leach one of my least favorite? Because it held that no meet and confer is required before filing a motion to compel when there has been no response at all. Regretfully, 45 years later, we are still following this antiquated case. It’s time for a change.

This requires us to go back to the original idea of discovery “meet and confers” and what they are intended to do. As I tell lawyers in my courtroom, the purpose of meet and confer is to do everything reasonably possible to resolve the matter without having to file a motion. Of course, fewer discovery motions is my reason for effective  “meet and confers.” But really, the purpose of discovery meet and confer is to find out what the other side really wants, without ridiculously frivolous objections. “State your name...Objection, attorney-client privilege.” Really? Of course that doesn’t happen, but you can bet there are a lot of “attorney client privilege” objections that have nothing to do with the question. Sometimes I will ask the attorneys, “Why do you have three paragraphs of objections?” “Well judge, we want to preserve our rights.” In some states other than California, the only objection that an attorney can state during a deposition is “form” and all other objections are reserved. Alas, not here.

But back to Leach. If our goal is for attorneys to avoid discovery motions, then why don’t they call the other lawyer and say “Hey, Sarah, I sent your client some rogs a couple of months ago and I haven’t gotten a response.” Sometimes the answer is, “Thanks for reminding me, I’ve been out of the office getting chemo and things slipped through the cracks”... or  “I forgot but I’ll get them to you right away,” or even,  “I’m sorry (legal assistant speaking) but my boss died last month and we are trying to get someone to take over the cases.” Yes, that has happened in my court (more than once). So, it’s time we disregard Leach and put the onus on lawyers to reach out and remind the other side when there have been no responses; in other words, meet and confer to find out what’s really going on.

I still get motions to compel when there has been no response with no meet and confer, gleefully citing Leach. Sometimes I will look forward in my calendar, see these motions, and email the attorneys to have a telephonic or video conference meet and confer, or else the motion will be continued until they do. A lot of those motions drop off the calendar. A simple phone call could have avoided the motion all together.

What can be more reasonable than reaching out to the other side to ask where the overdue responses are and when they will be served? I think that most motions to compel when there is no response can be avoided by a simple phone call. Despite that, attorneys continue to persist in filing motions that take hours to prepare, hours for an appearance, half an hour to write a “notice of no opposition” telling the court what it can easily see, instead of making a 10-minute call.

So if there is a rules committee, or Legislator, or anyone with any clout out there, please make in person, telephonic, or video conference “meet and confers” required before all discovery motions!

There have been commentators (www.facebook.com/groups/ 1521979581661936/posts/ 2167513303775224) who suggest that GenZ and Millennials don’t talk on the phone because they never developed that skill. One person has said that “it’s the anxiety associated with real-time conversations, potential awkwardness, not having the answers and the pressure to respond immediately,” that makes him hate talking on the phone.

The reluctance to talk on the phone is not just limited to Gen Z and Millennials, it is rampant in the practice of law. The benefits of a human-to-human meet and confer are too numerous to count. Meet and confer is intended “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order...” (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.) It “lessen[s] the burden on the court and reduce[s] the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) Counsel must “listen to the reasons offered and make a good faith attempt to resolve the issue.” (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) A true meet and confer “entails something more than bickering with [opposing counsel]. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court at p. 1439.)

Some of our judges put their meet and confer requirements on the courtroom information posted on the court’s website. Here’s one I like: “The Court expects and encourages counsel and any self-represented parties to informally resolve discovery disputes, instead of using expensive and cumbersome discovery motions. Thus, counsel and any self-represented parties shall meet and confer to make a reasonable and good faith attempt to informally resolve each discovery issue in dispute.” This is very polite and formal, not like me saying, “Hey, I am going to make you two talk to each other and then you can come back to me.” Some of those motions never make it back to me.

Our own LASC Local Rules, Chapter Three, Appendix A contain the “Guidelines for Civility in Litigation” and there is a big section on discovery. One of the guidelines is  “[b]efore filing a motion, counsel should engage in more than a mere proforma discussion in an effort to resolve the issue...” I agree...by talking to each other!

What this comes down to is this: We need a change in the culture. When I first started practicing, I went to lunch or dinner with insurance adjusters to settle cases. Human-to-human contact. Now, some lawyers never talk to their clients; their staff does. Some lawyers never meet their clients until the deposition or even trial. No human-to-human contact. Any suggestions on how to change the culture of being at war with opposing counsel to a culture of respectful communications between colleagues would be appreciated. Until that change, I can only hope that some of you practicing lawyers will rethink your approach to discovery “meet and confers” and really try to resolve the problems by talking to each other, rather than make meaningless arguments and threats in emails and letters. It doesn’t get what you want or need and I guarantee it does not impress your judge. Let’s eliminate telephobia! (Please note: Opinions in this article are those of the author and not the Los Angeles Superior Court.)