Motion to Compel Discovery
A motion to compel discovery is sometimes part of a process in the exchange of information in a lawsuit. If you look up “motion to compel” on the internet, you may read something like this: If the other side has not answered discovery in a civil lawsuit, you can file a motion to compel discovery.
It’s not that simple.
Discovery is supposed to be exchanged between the litigants, through their lawyers. Ordinarily, discovery requests are not even supposed to be filed with the court clerk for the case’s court file. Discovery is an out-of-court process governed by the Discovery Code within the Rules of Civil Procedure.
If a party that has received discovery requests has not responded to the requests in time, or if they did respond but the party who issued the requests feels that the responses were inadequate, the next step is not to file a motion to compel. The next step is a conference. The conference is supposed to be in person, but the rules allow for telephone calls to substitute for the in conference requirement.
Letters don’t count. Emails don’t count. Telephone calls with no message don’t count.
However, letters, emails, and telephone calls are all a part of the motion to compel process. Judges know the rules, and they know that it is inappropriate for someone to file a motion to compel if they have not complied with the mandatory conference requirement. That is why it is important to create a paper trail: send emails to schedule a conference, then, after the conference, send emails memorializing the outcome of the conference that include any agreements or disagreements, and otherwise document conference attempts and outcomes. This way, if a discovery motion to compel is needed, the moving party can demonstrate that extensive efforts were made to avoid judicial intervention. It is almost always improper to file a motion to compel on the day that discovery responses are due. The only exception to this would be if the party whose responses are due says, “I’m not going to respond, period.” Otherwise, the lawyers have to schedule a meeting and discuss the discovery situation. If there is a conference and the party whose responses are past-due says they will re-visit or re-work their responses, a motion to compel is inappropriate. Ordinarily, they should be granted a reasonable amount of time to respond and correct any defects in their original responses.
Motions to compel should be viewed as a last resort, after multiple attempts to resolve discovery issues informally have failed. Too many lawyers try to take shortcuts in the discovery dispute process, leading to problems with discovery and evidence in the case, even though their original discovery requests were valid. It can seem paradoxical, but motions to compel receive extreme scrutiny to ensure that 1. the issues raised in the motion are legitimate and 2. extraordinary
effort was made to resolve those issues without resorting to motion practice. Our law firm teaches discovery best practices to other lawyers, and we assist lawyers and law firms from other states with discovery in the Midwest where we operate. When we file a motion to compel, it demonstrates extensive efforts to resolve the issues raised in the motion. We simultaneously signal reluctance and diligence, and our motions to compel get results.
