(dissenting) — CR 26(i) provides:
The court will not entertain any motion or objection with respect to rules 26 through 37 unless counsel have conferred with respect to the motion or objection. . . . Any motion seeking an order to compel discovery or obtain protection shall include counsel’s certification that the conference requirements of this rule have been met.
This rule is patterned after King County Local Rule 37(e)2 and parallels a portion of Federal Rule of Civil *205Procedure 37(a)(2).3 Its primary purpose is to minimize the use of judicial resources during discovery, or, in the more formal words of the rule’s drafters, “to reduce the number of discovery controversies brought before the courts for adjudication.”4 It is designed to aid the court and, to a lesser extent, the party requesting discovery. It is not designed to trap the court or the party seeking discovery, or to be a sword in the hands of the party who has not provided discovery.
In light of this purpose, CR 26(i) should be read as permitting a trial court to not consider a motion to compel discovery unless counsel have conferred and the movant has certified that fact. CR 26(i) should not be read as prohibiting a trial court from exercising its discretion to waive a conference and certification if, under the particular circumstances, that will fairly and sensibly streamline the progress of the case. In short, the rule should be a shield that protects the court from becoming involved in half-baked discovery disputes, not a sword for the discovery violator to wield against the court.
Even though Fed. R. Civ. P. 37(a)(2) is worded as “mandatorily” as CR 26(i),5 most federal cases take this approach. In Ross v. Citifinancial, Inc.,6 a federal court *206declined to decide a motion to compel brought under Fed. R. Civ. R 37(a)(2) in the absence of the required certification.7 In Reidy v. Runyon,8 a federal court decided a motion to compel brought under Fed. R. Civ. R 37(a)(2), despite the absence of the required certification. In Imperial Chemicals Industries, PLC v. Barr Laboratories, Inc.,9 a federal court waived “meaningful consultation” due to the particular circumstances.10
A hypothetical illustrates the absurdity of a contrary approach. Suppose that Party A brings a motion to compel discovery against Party B. Party A fails to certify that a discovery conference has occurred. The court chooses to believe that a conference would do no good, and to waive the requirements of CR 26(i). The court finds that Party B has violated the discovery rules, so it imposes sanctions against Party B. Party B appeals, arguing that the court lacked authority to impose sanctions in the absence of a conference and certification.
To agree with Party B is to turn CR 26(i) on its head. The rule’s purpose is to assist the court in policing discovery, not to impede the court in policing discovery. The court may enforce it or waive it, and neither party should be allowed to object. Its mandatory language gives notice to the parties that the court has discretion not to consider a motion to compel in the absence of a conference and certification, but its mandatory language does not eliminate the court’s discretion to manage discovery proceedings in a fair and expeditious way.
*207I do not overlook Rudolph v. Empirical Research Systems,11 That case construed the rule far too woodenly, and contrary to its intended purpose. I would have dissented if I had been on the panel, and I respectfully dissent today.
I would hold that the trial court had discretion to manage the discovery proceedings and that it acted within the scope of that discretion. Accordingly, I would affirm its order of dismissal.
King County Local Rule 37(e) provides:
The court will not entertain any motion or objection with respect to Civil Rules 26 through 37, unless it affirmatively appears that counsel have met and conferred with respect thereto. Counsel for the moving or objecting party shall arrange such a conference. If the court finds that the counsel for any party, *205upon whom a motion or objection in respect to matters covered by such rules is served, willfully refuses to meet and confer, or having met, willftdly refuses or fails to confer in good faith, the court may take appropriate action to encourage future good faith compliance.
Fed. R. Civ. P. 37(a)(2)(A) provides that when a party moves to compel a disclosure required by Fed. R. Civ. P. 26(a), he or she “must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.” Fed. R. Civ. P. 37(a)(2)(B) provides that when a party moves to compel answers to interrogatories and certain other kinds of responses, he or she must certify similarly.
4 Lewis H. Okland & Karl B. Tegland, Washington Practice: Rules Practice, CR 26, § 22, at 13 (4th ed. Supp. 2002). An additional purpose, according to the rule’s drafters, is “to encourage professional courtesy between attorneys.” Id. At the times pertinent here, however, one party had an attorney and one was pro se.
Fed. R. Civ. P. 37(a)(2), see supra n.2, states that a motion to compel “must” include a certification.
203 F.R.D. 239 (S.D. Miss. 2001).
See Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 624 (D. Kan. 2001). The Burton court said that Fed. R. Civ. P. 37(a)(2) is mandatory. That statement was dictum, however, for the court needed only to find that it was discretionary.
169 F.R.D. 486 (E.D.N.Y. 1997).
126 F.R.D. 467, 472 (S.D.N.Y. 1989).
But see Burton, 203 F.R.D. at 627 (declining to hear motion to compel not accompanied by certification, and stating that Fed. R. Civ. P. 37’s conference requirement “is mandator/’).
107 Wn. App. 861, 28 P.3d 813 (2001).