Personal Injury, Probate, Employment, & Complex Litigation


Motions To Compel

When you send written discovery, the opposing party has 30 days to provide you with a response. However, invariably there will be at least one answer to your discovery that you believe does not fully answer your question as is legally required.

When this happens, you have two options: 1. Let it go, or 2. Pursue a motion to compel further responses.

In most instances it is at least worth your effort in going through the preliminary stages of a motion to compel, which is to say meeting and conferring. Meeting and conferring is required prior to bringing any motion to compel (unless the opposing party failed to answer the discovery in any way). What meeting and conferring is essentially, is one side telling the other why they believe their answers are deficient, and the responding party agreeing to supplement, or explaining why they believe their responses are sufficient.

The most effective way to meet and confer is in person. This generally leads to the best results and is the most likely to lead to compromise. Unfortunately, if no agreement is reached, there is no evidence of what type of conversation took place. Additionally, many attorneys have no qualms about alleging that the opposing party did not adequately meet and confer, and without any evidence to the contrary it becomes a battle of your word against theirs. While it is unlikely that the court will sanction you for failing to meet and confer, you do not want to be in the position where you are relying upon their court’s interpretation of events.

That is why I suggest to always communicate via written letters or e-mails. This does not preclude you from still having a face to face meeting, but you want to follow up each meeting with a letter to the opposing party summarizing what occurred during the meeting.

If after meeting and conferring there are still responses that you believe to be inadequate, you then should weigh the importance of the information you are seeking with the cost of filing the motion. While there are statutorily mandated sanctions for opposing a motion to compel without good cause, judges rarely enforce the statute so you are unlikely to recover your costs, even if successful.

If the information is important you should seek the motion to compel. But know, if the judge believes that you do not have good cause in bringing the motion, then that same statute mandates that they sanction you. While again, this is an uncommon occurrence, it should come into your thought process when deciding whether to file a motion to compel.

If successful on a motion to compel the court will order further responses by a certain date, and if the opposing party fails to provide the responses by the assigned date then they are in contempt of the court.