The other side is not giving you adequate discovery responses. In frustration, you may want to file a motion to compel. But stay calm and consider carefully whether doing so really makes sense and if there are better alternatives.
Here are 6 important considerations to mull over before you move to compel discovery responses:
- Time and expense. Motions to compel tend to be expensive and time-consuming, and clients can end up spending substantial sums of money for very little result. Consider whether the information sought is important enough to justify the time and expense of making the motion.
- Potential sanctions. Filing a motion to compel can constitute a misuse of the discovery process if it’s done “unsuccessfully and without substantial justification.” CCP §2023.010(h). Any party or attorney who files such a motion risks the imposition of sanctions. CCP §2023.030. So before you file, make sure that it’s truly warranted by the facts and applicable law.
- Alternative discovery methods. There may be other, potentially more cost-effective ways to get the information. For example, if interrogatories were unsuccessful in eliciting needed information, a deposition may provide that information more readily (and at less cost) than a motion to compel further responses.
- Voluntary meet and confer. Before moving to compel further discovery responses, California law requires that the parties “meet and confer.” But when a party doesn’t respond at all to written discovery, there’s no meet-and-confer requirement before the propounding party may file a motion to compel. See, e.g., CCP §2030.290. Even if you can move to compel right away, consider telling the other side that you plan to file a motion to compel; this may prompt service of the overdue responses, thereby obviating the need to bring a motion.
- Discovery referee or special master. If discovery disputes threaten to overwhelm the litigation, appointment of a discovery referee or special master, who can quickly resolve discovery disputes without the need for the parties to make formal motions, can be useful and cost-effective. See CCP §§638-645.2. If the parties don’t consent to such appointment, a discovery referee can only be appointed by the court if there are “extraordinary circumstances.” CCP §639(d)(2).
- Judicial disfavor. Trial courts generally have little tolerance for discovery motions because of a perception that the parties ought to be able to resolve many, if not most, discovery disputes on their own. If a motion to compel becomes necessary, understand that busy trial courts won’t be able to spend much time analyzing complex discovery disputes, so keep it as concise and straightforward as possible.
You should generally use motions to compel further discovery responses only as a last resort. But when properly used, they can force a recalcitrant party to disclose all of its supporting evidence and make the trial court an ally when the discovery abuses prejudice a party’s ability to present its claims or defense.
For everything you need to know about discovery motion practice and sanctions, turn to CEB’s California Civil Discovery Practice, chapter 15.
Related CEB blog posts:
- Calendaring Your Discovery Plan
- 5 Ways to Defeat Deposition Abuse
- 7 Rules for Drafting Interrogatories
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