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Commands for a compelling Motion to Compel

Commands for a compelling Motion to Compel

Elements to keep in mind while filing the Motion to Compel is to mention the nature of the case, identify the question that needs to be answered or the object or document that is needed and explain how it relates to the case, attach the other party’s written refusal to make available the information or object, make it clear that the other party refuses or fails to answer, refute why the other party’s objection is not valid, ask the court to order the refusing party to produce the item that is being requested or to answer the question that has been asked and finally, ask the court for sanctions on the other party if the motion is granted.

A motion to compel is one of the most frequently used motions by an attorney practicing commercial litigation.  It is filed when the opposing party has failed or refused to respond to a discovery request, allow an inspection, answer an interrogatory question or answer a question at a deposition.  An evasive or incomplete answer is the same as a failure to answer and an attorney will file a motion to compel to bring forth the answer or the document.  In the Federal Courts, the motion is filed under Rule 37 Federal Rule of Civil Procedure.  In State Courts, the corresponding state law is relied upon to file the motion to compel.

The moving party filing the motion to compel should certify to the court that he or she made a good faith effort to convince the other party to answer the question or produce the item that was requested. While filing, the request of discovery or disclosure made by the moving party, and the response of the opposing party should be attached to the motion to compel.  The moving party should give reasonable notice to all the parties concerned.

 Some of the things to be kept in mind while filing the motion is:

  • To mention the nature of the case;
  • To identify the question that needs to be answered or the object or document that is needed and explain how it relates to the case;
  • Do not forget to attach the other party’s written refusal to make available the information or object;
  • Make it clear that the other party refuses or fails to answer;
  • Refute why the other party’s objection is not valid;
  • Ask the court to order the refusing party to produce the item that is being requested or to answer the question that has been asked;
  • Finally, ask the court for sanctions on the other party if the motion is granted.

The party opposing the motion to compel should give substantial justification in its brief in response to the motion of why they failed to answer the question or refuse to produce the document requested.  For example, the judge may decide to preclude the document or item if it is privileged, such client-attorney communication.  Other examples of substantial justification for not producing something would be if the items requested are so annoying, embarrassing, oppressing and/or would cause an undue burden on the opposing party, and that justice will not be served by producing it. To know the available time to file a written response, the respective local court rules should be checked.

There should a good reason or justification for opposing the motion to compel.  If the opposition to the motion is without justification, the court may sanction the opposing party.   Once a court grants a motion to compel, the party must obey the order.  If a party refuses to obey the order, it is considered contempt of court and sanctions may be imposed on the refusing party.

Refusal to Abide Court Order Attracts Sanctions

A court can sanction or punish a party who opposes a motion to compel without having substantial justification.  If the court allows the motion to compel, it can order the opposing party to pay the attorney fees of the moving party.  On the other hand, if the court denies the motion, it can order the party who filed the motion to compel to pay the attorney fees of the party who successfully opposed it.

When a party refuses to obey the order, the court may sanction the refusing party by

  1. ruling that certain facts in the case will be viewed in favor of the moving party and against the opposing party;
  2. preventing the opposing party from supporting or opposing certain claims or defenses in the case;
  3. entering judgment against the opposing party; and
  4. holding the opposing party in civil contempt.  Through a contempt ruling, a court can order a party in jail until that party obeys the court’s order.

Conclusion

A court’s discovery rules must be respected.  Parties should produce relevant documents and answer questions that the other party asks, unless they are confident that they have substantial justification for refusing to do so.

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