Discovery Deficiency Meet-and-Confer Letter - Montana

DISCOVERY DEFICIENCY MEET-AND-CONFER LETTER

Montana District Court — M. R. Civ. P. 37(a)(1)

[FIRM NAME]
[Street Address]
[City, MT ZIP]
Tel: [____________________] | Fax: [____________________]
[Attorney Email Address]
Montana Bar No.: [____]

Date: [__/__/____]

VIA: ☐ Email ☐ Certified Mail ☐ Hand Delivery ☐ Overnight Courier ☐ Facsimile

[Opposing Counsel Name]
[Law Firm Name]
[Street Address]
[City, State ZIP]
Email: [________________________________]

Re: [Plaintiff Name] v. [Defendant Name]
Court: [________________________________] District Court, [____] Judicial District, [____] County
Case No.: [________________________________]
Discovery Deficiency Meet-and-Confer — M. R. Civ. P. 37(a)(1)

Dear [Opposing Counsel Name]:

We write pursuant to Montana Rule of Civil Procedure 37(a)(1) to notify you of specific deficiencies in your client's discovery responses served on [__/__/____] and to fulfill our obligation to confer in good faith before seeking court intervention. M. R. Civ. P. 37(a)(1) requires that a motion to compel include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action; the same certification is required for a Rule 37(d) motion (Rule 37(d)(1)(B)). Under Rule 37(a)(5)(A)(i), a movant who files before attempting in good faith to obtain the discovery cannot recover expenses.

Please treat this as our formal meet-and-confer communication. If the deficiencies identified herein are not fully cured by the deadline stated below, we will file a motion to compel accompanied by the required good-faith certification, and will seek all available expenses and sanctions under M. R. Civ. P. 37.

I. TIMELINE OF DISCOVERY EVENTS

II. MONTANA DISCOVERY RULES — CONTROLLING AUTHORITY

Important — Montana has NOT adopted the 2015 federal proportionality amendments. M. R. Civ. P. 26(b)(1) still uses the pre-2015 formulation. Do not import federal proportionality language into a Montana motion to compel.

• M. R. Civ. P. 26(b)(1): Unless otherwise limited by court order, parties may obtain discovery regarding any non-privileged matter relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of documents or other tangible things and the identity and location of persons who know of any discoverable matter. "The information sought need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
• M. R. Civ. P. 26(b)(2)(B): A party need not provide discovery of ESI from sources it identifies as not reasonably accessible because of undue burden or cost. On a motion to compel or for a protective order, the party from whom discovery is sought must make that showing; the court may nonetheless order discovery on a showing of good cause.
• M. R. Civ. P. 26(b)(2)(C): On motion or on its own, the court must limit the frequency or extent of discovery if (i) it is unreasonably cumulative or duplicative, or obtainable from a more convenient, less burdensome, or less expensive source; (ii) the requesting party has had ample opportunity to obtain the information; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.
• M. R. Civ. P. 26(b)(5)(A): A party withholding otherwise discoverable information on a claim of privilege or trial-preparation protection must expressly make the claim and describe the nature of the documents, communications, or things not produced — without revealing protected information — so other parties can assess the claim.
• M. R. Civ. P. 26(b)(5)(B): Clawback procedure. On notice of a privilege claim as to produced information, the receiving party must promptly return, sequester, or destroy it and any copies, must not use or disclose it until the claim is resolved, must take reasonable steps to retrieve it if already disclosed, and may present it to the court under seal.
• M. R. Civ. P. 26(g)(1): Every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name (or by an unrepresented party personally) and state the signer's address, certifying after reasonable inquiry that it is consistent with the rules and warranted by existing law, not interposed for any improper purpose, and neither unreasonable nor unduly burdensome or expensive considering the needs of the case, prior discovery, the amount in controversy, and the importance of the issues.
• M. R. Civ. P. 26(g)(2): Other parties have no duty to act on an unsigned request, response, or objection, and the court must strike it unless a signature is promptly supplied after the omission is called to attention.
• M. R. Civ. P. 26(g)(3): If a certification violates the rule without substantial justification, the court must impose an appropriate sanction on the signer, the represented party, or both, which may include reasonable expenses and attorney fees caused by the violation.
• M. R. Civ. P. 33(a)(1): Unless otherwise stipulated or ordered, a party may serve on any other party no more than 50 written interrogatories, including all discrete subparts. (Montana's limit is 50 — not the federal 25.) Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).
• M. R. Civ. P. 33(b)(2): Answers and objections are due within 30 days after service, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint on that defendant. A shorter or longer time may be stipulated under Rule 29 or ordered by the court.
• M. R. Civ. P. 33(b)(3): Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
• M. R. Civ. P. 33(b)(4): Grounds for objecting must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
• M. R. Civ. P. 33(b)(5): The person who makes the answers must sign them, and the attorney who objects must sign any objections.
• M. R. Civ. P. 34(b)(2)(A): A response is due within 30 days after service, except that a defendant may respond within 45 days after service of the summons and complaint on that defendant.
• M. R. Civ. P. 34(b)(2)(B)-(C): For each item or category, the response must either state that inspection will be permitted as requested or state an objection including the reasons; an objection to part of a request must specify the part and permit inspection of the rest.
• M. R. Civ. P. 34(b)(2)(E): A party must produce documents as kept in the usual course of business or organize and label them to correspond to the request's categories; if no form is specified for ESI, it must be produced in a form in which it is ordinarily maintained or in a reasonably usable form; and a party need not produce the same ESI in more than one form.
• M. R. Civ. P. 36(a)(3): A matter is admitted unless, within 30 days after service, the responding party serves a written answer or objection signed by the party or its attorney — but, unless the court shortens the time, a defendant is not required to serve answers or objections before 45 days after service of the summons and complaint.
• M. R. Civ. P. 36(a)(6): The requesting party may move to determine the sufficiency of an answer or objection; on finding an answer non-compliant, the court may order that the matter is admitted or that an amended answer be served. Rule 37(a)(5) governs expenses.
• M. R. Civ. P. 36(b): A matter admitted is conclusively established unless the court permits withdrawal or amendment.
• M. R. Civ. P. 37(a)(1): A motion to compel must include certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.
• M. R. Civ. P. 37(a)(4): An evasive or incomplete answer or response must be treated as a failure to answer or respond.
• M. R. Civ. P. 37(a)(5)(A): If the motion is granted — or if the requested discovery is provided after the motion was filed — the court must, after an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the advising attorney, or both to pay the movant's reasonable expenses including attorney fees. The court must not order payment if the movant filed before attempting in good faith to obtain the discovery without court action, the opposing party's response or objection was substantially justified, or other circumstances make an award unjust.
• M. R. Civ. P. 37(a)(5)(B): If the motion is denied, the court may issue a Rule 26(c) protective order and must, after an opportunity to be heard, require the movant, the filing attorney, or both to pay the opposing party's reasonable expenses — unless the motion was substantially justified or other circumstances make an award unjust.
• M. R. Civ. P. 37(a)(5)(C): If the motion is granted in part and denied in part, the court may apportion the reasonable expenses.
• M. R. Civ. P. 37(b)(2)(A): For not obeying a discovery order the court may issue further just orders, including deeming matters established, prohibiting support or opposition of designated claims or defenses, striking pleadings, staying proceedings, dismissal, default judgment, or contempt (except as to an order to submit to a physical or mental examination).
• M. R. Civ. P. 37(b)(2)(C): In addition to or instead of those orders, the court must order the disobedient party, the advising attorney, or both to pay the reasonable expenses caused by the failure, unless substantially justified or unjust.
• M. R. Civ. P. 37(c)(2): If a party fails to admit under Rule 36 and the requesting party later proves the matter, the court must order payment of the expenses of making that proof, subject to the four exceptions in Rule 37(c)(2)(A)-(D).
• M. R. Civ. P. 37(d): Sanctions are available without a prior court order where a party fails to serve answers, objections, or a written response after being properly served with Rule 33 interrogatories or a Rule 34 request. A motion under Rule 37(d) also requires a good-faith conferral certification (Rule 37(d)(1)(B)), and the failure is not excused on the ground that the discovery sought was objectionable unless a motion for a protective order is pending (Rule 37(d)(2)).
• M. R. Civ. P. 37(e) — SAFE HARBOR, not a sanctions provision: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically-stored information lost as a result of the routine, good-faith operation of an electronic information system." Montana did not adopt the 2015 federal Rule 37(e), which affirmatively authorizes ESI spoliation sanctions. Do not cite M. R. Civ. P. 37(e) as a source of spoliation sanctions in Montana — it cuts the other way.
• M. R. Civ. P. 37(f): A party or attorney who fails to participate in good faith in framing a Rule 26(f) discovery plan may be ordered to pay the resulting reasonable expenses.

III. DEFICIENCIES IN INTERROGATORY RESPONSES

Pursuant to M. R. Civ. P. 33, the following interrogatory responses are deficient and must be supplemented:

Total interrogatories served by [Party]: [____] (Montana's limit is 50 written interrogatories including all discrete subparts, M. R. Civ. P. 33(a)(1), absent stipulation or leave of court)

Additional interrogatory notes:
[________________________________]
[________________________________]

IV. DEFICIENCIES IN REQUESTS FOR PRODUCTION RESPONSES

Pursuant to M. R. Civ. P. 34, the following deficiencies exist in your document production:

Additional RFP notes:
[________________________________]
[________________________________]

V. DEFICIENCIES IN REQUESTS FOR ADMISSION RESPONSES

Pursuant to M. R. Civ. P. 36, the following admission responses are deficient:

VI. PRIVILEGE LOG DEFICIENCIES

Under M. R. Civ. P. 26(b)(5)(A), any party withholding otherwise discoverable information by claiming privilege or trial-preparation protection must:

1. Expressly assert the privilege in the response; and
2. Describe the nature of withheld documents with sufficient detail to enable assessment of the privilege claim.

☐ No privilege log has been provided despite apparent withholding of documents.
☐ Privilege log provided is incomplete — missing: [________________________________]
☐ The following privilege log entries are insufficient: [________________________________]

Each privilege log entry must contain:

• Document date
• Author and all recipients (including CC/BCC)
• General subject matter (without revealing privileged content)
• Type of privilege asserted (attorney-client, work product, other)
• Specific basis for the privilege claim

VII. VERIFICATION DEFICIENCY

Under M. R. Civ. P. 33(b)(3), each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. Under M. R. Civ. P. 33(b)(5), the person who makes the answers must sign them, and the attorney who objects must sign any objections — so counsel's signature alone does not satisfy the rule as to answers. Separately, under M. R. Civ. P. 26(g)(2), other parties have no duty to act on an unsigned response or objection and the court must strike it unless a signature is promptly supplied.

☐ The interrogatory responses are signed by counsel only. Please provide a client-signed verification page by [__/__/____].

VIII. ESI AND DOCUMENT FORMAT DEFICIENCIES

Under M. R. Civ. P. 34(b)(2)(E)(i), a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. Under Rule 34(b)(2)(E)(ii), if a request does not specify a form for producing ESI, the party must produce it in a form in which it is ordinarily maintained or in a reasonably usable form; under Rule 34(b)(2)(E)(iii), a party need not produce the same ESI in more than one form.

☐ Documents were produced in non-searchable PDF format — please re-produce in native format or searchable PDF.
☐ Electronic documents were produced without metadata — please re-produce with metadata preserved [cite the ESI protocol, stipulation, or order requiring this; Rule 34 alone does not]
☐ Documents lack Bates numbering — please re-produce with sequential Bates labels [cite the ESI protocol, stipulation, or order requiring this; Rule 34 alone does not]
☐ Other ESI issue: [________________________________]

IX. DEMAND FOR SUPPLEMENTATION

We demand that you serve complete supplemental responses to all deficient discovery items and produce all responsive documents no later than:

SUPPLEMENTATION DEADLINE: [__/__/____]

This deadline affords [____] days from this letter, which we consider reasonable given the nature of the deficiencies.

X. MEET-AND-CONFER AVAILABILITY

We are available to confer by telephone or in person in good faith to attempt to resolve these issues, as required by M. R. Civ. P. 37(a)(1). We are available on the following dates (Mountain Time):

☐ [__/__/____] at [____] a.m./p.m.
☐ [__/__/____] at [____] a.m./p.m.
☐ [__/__/____] at [____] a.m./p.m.

Please confirm a time by [__/__/____] or propose alternatives.

XI. SANCTIONS WARNING

M. R. Civ. P. 37(a)(5)(A) provides that if a motion to compel is granted — or if the requested discovery is provided after the motion is filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney fees. The court must not order that payment if the movant filed the motion before attempting in good faith to obtain the discovery without court action, if the opposing party's response or objection was substantially justified, or if other circumstances make an award of expenses unjust. Note also that under M. R. Civ. P. 37(a)(4) an evasive or incomplete answer is treated as a failure to answer.

M. R. Civ. P. 37(b)(2) authorizes courts to sanction discovery order violations by:

• ☐ Directing that designated facts be taken as established
• ☐ Prohibiting the party from supporting or opposing designated claims or defenses
• ☐ Striking pleadings in whole or in part
• ☐ Staying proceedings until the order is obeyed
• ☐ Dismissing the action or entering default judgment
• ☐ Treating the failure as contempt of court

M. R. Civ. P. 37(d) permits sanctions without a prior court order where a party, after proper service of Rule 33 interrogatories or a Rule 34 request, fails to serve answers, objections, or a written response — and such a motion must itself carry a good-faith conferral certification under Rule 37(d)(1)(B). Under Rule 37(d)(3), in addition to or instead of the Rule 37(b)(2)(A)(i)-(vi) orders, the court must require the party failing to act, the advising attorney, or both to pay the reasonable expenses caused by the failure unless substantially justified or unjust. M. R. Civ. P. 37(e) is not a sanctions provision in Montana — it is a safe harbor barring sanctions, absent exceptional circumstances, for ESI lost through the routine, good-faith operation of an electronic information system.

This letter constitutes our good-faith effort to resolve these issues without court action. If full supplementation is not received by [__/__/____], we will file our motion to compel without further notice and will include certification documenting our good-faith efforts pursuant to M. R. Civ. P. 37(a)(1).

XII. LITIGATION HOLD AND PRESERVATION DEMAND

Please confirm in writing that your client has maintained and continues to maintain a litigation hold over all potentially relevant electronically stored information, email, text messages, instant messages, voicemail, cloud-stored data, shared drive contents, and hard-copy documents.

Basis for spoliation consequences in Montana. M. R. Civ. P. 37(e) does not supply this remedy — Montana's Rule 37(e) is a safe harbor providing that, absent exceptional circumstances, a court may not impose sanctions under the rules for ESI lost through the routine, good-faith operation of an electronic information system. Montana did not adopt the 2015 federal amendment that turned Rule 37(e) into an affirmative ESI-spoliation sanctions provision. Consequences for destruction of relevant evidence in Montana therefore rest on Montana common law and on the court's inherent authority, and — where a preservation or discovery order has been violated — on M. R. Civ. P. 37(b)(2). Counsel should identify the specific basis relied upon rather than citing Rule 37(e).

XIII. REQUESTED RESPONSE

Please respond to this letter in writing no later than [__/__/____], confirming either:

1. That you will provide complete supplemental responses by [__/__/____]; or
2. The specific factual and legal bases for your position that each challenged response is adequate.

Your failure to respond may be cited to the court as evidence of bad-faith conduct in discovery.

Sincerely,

[________________________________]
[Attorney Name], Montana Bar No. [____]
[Law Firm Name]
[Address]
[Phone] | [Email]
Counsel for [Party Name]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of this Discovery Deficiency Meet-and-Confer Letter was served upon all counsel of record as follows:

[Opposing Counsel Name]
[Law Firm Name]
[Address]
[Email]

Service method: ☐ Email ☐ U.S. Mail, postage prepaid ☐ Hand Delivery ☐ Facsimile ☐ Overnight Courier

[________________________________]
[Attorney Name]

Sources and References: M. R. Civ. P. 26, 33, 34, 36, 37 (Montana Code Annotated Title 25, Chapter 20; archive.legmt.gov); M. R. Civ. P. 37(a)(1) good-faith conference certification requirement; M. R. Civ. P. 37(a)(5)(A) mandatory expense-shifting.

SOURCES AND REFERENCES

The Montana Rules of Civil Procedure are published in the Montana Code Annotated, Title 25, chapter 20. All rule text cited above was verified against the official MCA 2025 at mca.legmt.gov on 2026-08-01.

Rules 26, 33, 34, 36, and 37 were adopted by Sup. Ct. Ord. No. AF 07-0157 (Apr. 26, 2011, eff. Oct. 1, 2011). Rule 26 was amended by Sup. Ct. Ord. No. AF 07-0157 (Dec. 16, 2014), and Rule 37 by Sup. Ct. Ord. No. AF 07-0157 (June 28, 2022, eff. June 28, 2022). Because the Montana Supreme Court amends these rules by order rather than by session law, check the Court's current orders under AF 07-0157 before relying on any rule text.