Suppose a former employee is suing the company where she previously worked for wrongful termination, claiming she was let go due to her religious affiliations rather than her performance.
During discovery, the employee’s attorney requests evidence from the company, including internal communications, email correspondences, anti-discrimination training protocols and the employee’s performance evaluations — all of which are essential in proving the company wrongfully terminated the employee.
The company responds by providing only a fraction of the documents requested, leading to the employee’s attorney sending a meet and confer letter to the company seeking answers as to why it’s withholding crucial evidence. The company claims its confidentiality protocols preclude it from sharing the requested documents.
The employee’s attorney proceeds to make additional attempts to informally obtain the evidence, but to no avail. Eventually, he’s forced to file a motion to compel production of the missing documents, arguing that they are not only pertinent to the lawsuit but necessary for a fair trial.
In this motion to compel example, it’s possible the company is deliberately withholding the requested evidence to obstruct the discovery process. This places the plaintiff at a disadvantage because filing the motion to compel likely will increase her legal costs.
In this instance, it wouldn’t just be appropriate for the plaintiff to file a motion to compel discovery but it would be advised. Without the defendant meeting its discovery obligations, the plaintiff’s legal team cannot build a strong case for their client or convincingly respond to the defendant’s counterarguments.
When a party refuses to comply with reasonable discovery requests, it is detrimental to their opponent. The example above illustrates the power of a motion to compel discovery in forcing compliance so that the fairness of a lawsuit is maintained and neither party has an unfair advantage over the other.
If you are or plan to be involved in a lawsuit, it’s crucial you understand the definition of a motion to compel discovery as well as when it’s appropriate to file this motion. Continue reading to learn everything you need to know about this important legal tool.
What Is a Motion to Compel Discovery?
A motion to compel discovery is a pretrial motion filed during the discovery phase of litigation. It asks the court to order the opposing party to comply with its discovery obligations. Only when a party refuses to comply with its discovery obligations is filing a motion to compel necessary.
What Is Discovery in Law?
The discovery phase of litigation commences after the initial pleadings have been filed in a lawsuit (i.e., the complaint and answer), and lasts until the lawsuit is settled or the trial begins.
During the discovery process, parties to a lawsuit exchange relevant evidence and information. In addition, evidence and information may be obtained from third parties using depositions and subpoenas.
The discovery process ensures both parties have access to the same facts and can investigate them accordingly before trial. The discovery process not only promotes fairness and transparency during the litigation process, but it prevents surprises during trial as well.
What Evidence Is Gathered During Discovery?
During discovery, it’s important that the evidence and information gathered have relevance to the lawsuit. Seeking evidence and information that is irrelevant not only would be a waste of time, but it could result in your discovery request being denied.
The types of evidence and information you gather will vary based on the nature of the lawsuit. For example, if the lawsuit involves personal injury from a car accident, you may seek the plaintiff’s medical records and photos of the scene of the accident, the damaged vehicle and possibly even of the injuries themselves.
The evidence and information sought during the discovery process may include:
- Written responses: Parties can ask each other questions to gather necessary information and clarify the facts and issues at stake. Written responses generally fall under one of the two categories below.
- Interrogatories: Questions one party sends to the other, and that must be answered under oath.
- Requests for admission: Requests that ask a party to admit or deny the authenticity of documents or accuracy of specific facts.
- Documents: Parties can ask each other for relevant documents, such as legal contracts, financial statements, medical records and business agreements.
- Electronic evidence (e-discovery): In modern-day litigation, parties requesting emails, text messages, social media posts and computer files stored on computers, clouds or servers is common.
- Depositions: Parties can request oral testimony taken under oath to both gather information prior to trial and assess the credibility of witnesses.
- Depositions of parties and witnesses: Parties to the lawsuit and relevant witnesses can be questioned.
- Depositions of expert witnesses: When appropriate, experts can provide opinions around technical or specialized elements of the lawsuit.
- Records from third parties: When applicable, parties not involved in the lawsuit may be subpoenaed for evidence or testimony.
- Physical or mental examinations: When a party’s physical or mental condition is relevant to a lawsuit, the opposing party can ask that they be professionally evaluated to gain a better understanding of the nature of their condition.
It is common for the court to provide the parties with at least a few months to complete the discovery process, although discovery timelines can vary based on the complexity of the lawsuit, and the evidence and information being sought.
Working with a seasoned litigator during the discovery process is crucial, as doing so ensures the right evidence and information is requested to build your case around. A litigator can also help you with filing a motion to compel discovery should the opposing party fail to comply with their discovery obligations.
Why File a Motion to Compel Discovery? — 5 Reasons
Motions to compel discovery are some of the most important tools California litigators have in their toolboxes. Without these motions, parties would be able to conceal or withhold any evidence or information that could hurt their case. It should go without saying that this would be unfair to the opposing party and potentially lead to an unfair trial as well.
To review, a motion to compel discovery is an umbrella term for requests made to the court to order the opposing party in a lawsuit to comply with discovery requests. Motions to compel discovery cover a wide spectrum of requests, everything from ordering the production of documents to requiring witnesses to submit to depositions. As such, California makes available several types of motions to compel discovery, each with different purposes and implications.
Keep in mind that before a motion to compel discovery can be filed, it might be required for the moving party to attempt to informally resolve the discovery dispute, such as through the meet and confer process, which will be discussed in more depth later in this article. It’s also important to note that the court might impose sanctions (i.e., monetary fines or penalties) on parties who file or oppose a motion to compel without valid cause.
If you are a party to litigation, understanding the various motion to compel discovery types and when to use them is essential in securing the evidence and information you need for the best chances of success at trial. We’ll go over some of the specific types of motions to compel discovery you can file when the opposing party in a lawsuit is noncompliant in satisfying your discovery requests in the following sections.
1. Compel Answers or Production
If you have made a discovery request to the opposing party for answers to interrogatories, authentication of certain facts or documents, or production of documents or other electronically stored information or tangible property, but have not received the material you requested within the 30-day timeframe in which answers are due, it may be appropriate for you to file a motion to compel answers or production to seek a court order requiring the opposing party to satisfy your request.
According to California Code of Civil Procedure section 2030.290, a party that receives interrogatories but doesn’t object on time according to the procedure established by Section 2025.410 risks losing the right to object to the interrogatories and could be forced by the other party to answer. If the party continues to ignore interrogatories, they face significant consequences, such as monetary and legal sanctions (which may include evidence being limited or certain claims being struck).
The consequences are virtually identical for a party that doesn’t answer requests for admission on time. Per Code of Civil Procedure section 2033.280, the party could be held as having waived their right to object to the request and could be forced by the other party to answer. They, likewise, could be subject to sanctions if they stay ignoring the request.
The same holds true for a party that fails to answer requests for production in a timely manner. Pursuant to Code of Civil Procedure section 2031.300, such a party could lose their right to object to the request and be forced by the other party to turn over the requested material. In addition, by ignoring the request, the party might make themselves liable to sanctions.
A motion to compel answer or production is the most common discovery motion for good reason: it ensures compliance with the discovery process. Without discovery, the parties would be limited in their ability to gather evidence and information in preparation for trial.
2. Compel Further Responses or Production of Documents
If you suspect the opposing party in a lawsuit has technically responded to your interrogatories, requests for admissions or requests for production of documents, but with incomplete or evasive responses, it may be appropriate for you to file a motion to compel further responses to seek a court order requiring the opposing party to provide better responses or more complete documents.
Filing a motion to compel further responses may also be appropriate if you believe the opposing party raised improper or overly general objections to your discovery request.
According to Code of Civil Procedure section 2031.310, the moving party must file a motion to compel further responses within 45 days of being served the initial response (unless both parties have agreed in writing that the motion can be filed at a later date), or they may be held as having waived their right to compel further responses to their demand. If the court agrees with the motion, or the opposing party ignores the request, sanctions may be imposed on the opposing party.
3. Compel Deposition
If the opposing party or a third-party witness fails to schedule or refuses to attend a deposition, it may be appropriate for you to file a motion to compel deposition to seek a court order forcing the deposed party to appear at the deposition and provide testimony under oath.
You can also file a motion to compel deposition if the deposed party fails or refuses to produce documents, electronically stored information or tangible items that specifically were requested in the deposition notice, or where the deposed party fails to answer relevant questions at his or her deposition, to seek a court order forcing the deposed party to produce the materials specified or return for a further deposition to answer such questions.
According to Code of Civil Procedure section 2025.450, a party that is properly served a deposition notice but fails to appear or produce documents, electronically stored information or tangible evidence for inspection without having served a valid objection under Section 2025.410 could be forced to comply with the request. If they fail to do so, they could face sanctions.
Depositions are a critical element of the discovery process, since they allow each party’s attorney to pose questions to the parties and witnesses prior to trial for evidentiary purposes. From depositions, attorneys may be able to gauge the credibility of witnesses and what to ask them during trial if they are asked to testify.
4. Compel Compliance With a Subpoena
A subpoena is a legal document that instructs a party or a third party witness to sit for a deposition and/or produce documents that are relevant to a case. If a party served with a subpoena is obstructing the deposition process by objecting to the subpoena, or refusing to comply with the subpoena by failing to appear for deposition, failing to answer relevant questions at the deposition, or failing to produce relevant documents, electronically stored information or tangible items specified in the subpoena, it may be appropriate for you to file a motion to compel compliance with the subpoena. Your motion could seek to seek an order compelling the witness to appear at deposition (if they refused to appear at all), or to answer relevant questions they declined to answer at the deposition, or to produce the requested materials they declined to produce, depending on the facts and circumstances of your case.
According to Code of Civil Procedure section 2025.480, this motion must be filed within 60 days of the completion of the initial deposition, and must be accompanied by a meet and confer declaration under Section 2016.040.
When the court grants a motion to compel compliance with a subpoena, it is essentially agreeing to intervene to enforce the subpoena so the deposed party will have no choice but to comply with the demands of the moving party. If they don’t, they could be subject to sanctions, including being held in contempt of court, which is a serious and punishable offense.
It’s important to keep in mind that the court might impose sanctions on you if you unsuccessfully try to compel compliance with a subpoena as well. Therefore, make sure your request is reasonable before entering it.
5. Compel Independent Medical Evaluation
If the opposing party has raised medical issues as part of their claim or defense — such as in a personal injury case, workers’ compensation lawsuit or probate dispute where mental competence is at issue — it may be appropriate for you to file a motion to compel an independent medical evaluation (IME) to seek a court order requiring the opposing party to be professionally assessed for their injuries or health condition, and the impact their injuries or health condition have on their life.
Under Code of Civil Procedure section 2032.310, a motion for an examination must specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and qualifications of the individual who will perform the examination. When filing a motion to compel an IME, it is crucial to demonstrate why the examination is necessary and that the information cannot be obtained through alternate means.
For examination requests, the moving party is required to provide adequate notice to the opposing party and their attorney. If the opposing party fails to comply with an examination request that was properly noticed, it may be possible to file a motion to compel compliance.
If the court granted a motion for an IME, but the opposing party failed to appear for the examination, sanctions may be imposed on the party.
How to File a Motion to Compel Discovery
It is important to understand how to file a motion to compel in the event the responding party refuses or fails to comply with your discovery requests.
Discovery is an important phase of litigation, if not the most important phase of litigation, since it allows both parties to gather evidence and information from their opponent and possibly even external sources. This evidence and information are what they will build their case around when they are ready to proceed to trial.
Because discovery is so crucial to your case, an ignored discovery request should not be overlooked. If the request you are making is reasonable and pertinent to the lawsuit, the responding party is obligated to satisfy it. If they refuse or fail to do so, it’s essential you file a motion to compel discovery to seek a court order forcing them to comply.
Remember, filing or opposing a motion to compel discovery without good reason could result in sanctions. Therefore, it’s crucial to be certain about the validity of your motion or objection before filing it. An attorney can help you assess the validity of your motion or objection prior to submission.
In the following sections, we’ll go over the steps for filing a motion to compel.
Meet and Confer
At least five days prior to filing a motion to compel discovery, it’s possible you will have to attempt to reach an informal resolution to your discovery dispute through a “meet and confer” process with the responding party. This process can take place in person, over the phone or by video conference.
The meet and confer requirement may not apply in instances where the responding party fails to provide any response to a discovery request, as the court tends to regard this level of noncompliance as a ground for intervention. Similarly, the meet and confer requirement may not apply in urgent situations where delays could impede the discovery process (e.g., if evidence is at risk of being destroyed) or if multiple attempts at informal resolutions have been made but unsuccessfully.
If no informal resolution can be reached, Code of Civil Procedure section 2016.040 stipulates that a meet and confer declaration must be filed alongside your motion demonstrating that a reasonable and good faith attempt to reach informal resolution was carried out by the parties.
Prepare Motion to Compel
When preparing your motion to compel discovery, you should aim to be as specific as possible about why you are seeking to compel compliance with a discovery request.
Motions to compel must include the following information:
- The discovery request to which the opposing party has failed to respond or has responded inadequately
- Why the discovery request is pertinent to the lawsuit
- The reasons for the opposing party’s objections to the discovery request
What Is a Separate Statement in a Motion to Compel?
It generally is required for motions to compel discovery to be accompanied by a separate statement — a document that must be prepared according to California Rules of Court Rule 3.1345 (c) — which is filed and served alongside the motion to compel discovery.
A separate statement may not be required if the responding party has failed to provide a response or lodge objections to your discovery request.
The separate statement for the motion to compel must contain all the information necessary for the court to understand each discovery request and response at issue without needing to review further documents.
File and Serve Motion to Compel
After you have prepared the motion to compel discovery, you must file the motion, along with the meet and confer declaration and separate statement (when applicable), with the court. You must also serve the motion to compel and notice of motion to the responding party.
According to Code of Civil Procedure section 1005(b), a motion to compel must be served to the responding party at least 16 court days prior to the hearing.
The same statute stipulates that if the motion is mailed to the responding party and they are located within California, five additional calendar days can be added to that deadline. If the responding party is located in another state, 10 additional calendar days can be added. If the responding party is located outside the U.S., 20 additional calendar days can be added. If the motion is served to the responding party by facsimile transmission, express mail or another method of delivery providing for overnight delivery, the 16-day period of notice prior to the hearing will be extended by two calendar days.
Filing and serving motions to compel discovery according to established procedures is crucial in ensuring your motion is properly considered.
What Is the California Motion to Compel Deadline?
In California, the deadline for filing a motion to compel discovery is usually 45 days from the date you received the verified response, or any supplemental response, to your discovery request. However, keep in mind that if the responding party fails to respond or lodge any objections to your discovery request, there is no deadline for filing a motion to compel discovery.
More information about California’s motion to compel deadlines can be found in Code of Civil Procedure Section 2030.300.
What Happens After a Motion to Compel Is Filed?
Once you’ve filed and served a motion to compel discovery, the court will set a hearing date to determine whether the responding party must fulfill your discovery request. The hearing date is typically scheduled for approximately 30 days from the date you filed the motion.
Because of how complex motions to compel discovery can be to navigate, it is crucial you work with an experienced litigator during the discovery process. Your attorney will play a vital role in gathering the evidence and information you need to support or defend the claims being litigated. They also will be able to accompany you to the motion to compel hearing to argue on your behalf in court.
When Is an Opposition to a Motion to Compel Filed?
An opposition to a motion to compel is generally filed after the opposing party that received the motion has had the opportunity to respond to the motion, but before the motion to compel hearing.
Specifically, Code of Civil Procedure section 1005 (b) states that opposition to a motion to compel must be filed at least nine court days before the hearing date.
Additionally, the responding party must serve the opposition to the moving party so the party can reply to the opposition if they so wish. If they do reply, they must do so at least five court days prior to the hearing.
What Happens at a Motion to Compel Hearing?
Between the time you file the motion and the motion is heard, the court will review the motion and any opposition from the responding party so it will be better equipped to make an informed decision at the motion to compel hearing.
At the motion to compel hearing, both parties’ attorneys will have the opportunity to present arguments and evidence in support of their clients’ positions. The court will then evaluate whether your discovery request is valid, or the responding party’s noncompliance and objections are warranted.
There are two potential outcomes in a motion to compel hearing, which parties must abide by once ruled on to ensure the litigation process can move forward without further delays.
Motion to Compel Is Denied
If the court finds your discovery request to be unreasonable, it will deny your motion to compel, absolving the responding party of its obligation to turn over the requested evidence or information.
It’s also possible that the court will impose sanctions on you if it deems that your discovery request was made without proper justification.
Motion to Compel Is Granted
If the court finds your discovery request to be reasonable, it will grant your motion to compel and issue an order forcing the responding party to comply with the request, whether that involves their producing documents, answering questions or appearing at a deposition.
If the responding party refuses or fails to comply with the court’s order, it’s possible they will be subject to sanctions.
What Happens if a Motion to Compel Is Ignored?
If a motion to compel discovery is ignored by the responding party, severe consequences could result in the form of sanctions. In other words, the party that ignored the court order requiring compliance with the discovery request may be forced to pay fines or be subject to legal penalties, such as some of their claims or defenses being struck from the record or possibly even their case being dismissed.
To put it plainly, it is never a good idea to ignore a motion to compel discovery, even if you disagree with the discovery request being made. A better solution would be to carefully draft an opposition to the motion detailing your reasons for not complying with the request. Your attorney can help with this process.
What Types of Motion to Compel Sanctions Can Be Imposed?
The court can impose sanctions on both the moving party and responding party in a motion to compel hearing. To review, sanctions are financial or legal penalties imposed by the court.
Code of Civil Procedure section 128.5 gives the court the authority to impose sanctions for bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delays, whereas Section 2023.030 outlines the specific grounds on which sanctions can be imposed.
The moving party could be subject to sanctions under the following circumstances:
- The party filed the motion without substantial justification or supporting evidence.
- The party filed the motion for an improper purpose (e.g., to delay proceedings).
- The party filed the motion without completing the meet and confer requirement.
- The party failed to abide by procedural requirements when filing the motion.
On the other hand, the responding party could be subject to sanctions under these circumstances:
- The party failed to adequately respond to discovery requests.
- The party failed to file an opposition or attend the hearing.
- The party filed an opposition without substantial justification or supporting evidence.
- The party filed an opposition for an improper purpose (e.g., to harass the other party).
- The party deliberately disobeyed court orders.
Although all sanctions are detrimental to the party that’s subject to them, some types are more detrimental than others. In the following sections, we go over the types of sanctions that can be imposed on either party in a motion to compel hearing.
Monetary Sanctions
Monetary sanctions are financial penalties imposed on a party to litigation for their improper conduct or noncompliance. They can take the form of the offending party being forced to pay the opposing party’s attorney’s fees or legal costs, or fines to the court or state.
Issue Sanctions
Issue sanctions are legal penalties imposed on a party to litigation that restrict the offending party’s ability to present certain claims or defenses in a lawsuit. A party may be subject to issue sanctions if they fail to comply with discovery requests.
These types of sanctions can be very damaging to the party affected by them. For example, if a party fails to respond to discovery requests surrounding their defenses, they may be barred from asserting those defenses at trial. In the same vein, if a party fails to disclose key issues during discovery, they may be barred from calling witnesses at trial to testify on those issues.
Issue sanctions can also cause certain facts to be established as true if, say, a party fails to respond to a request for admission during discovery. In such an instance, the court may deem the request to be admitted.
Evidence Sanctions
Evidence sanctions are legal penalties imposed on a party to litigation that limit their ability to present evidence and testimony in court. Needless to say, these types of sanctions can have a significant impact on the outcome of the case.
When a party refuses or fails to comply with discovery requests, they may become subject to evidence sanctions, which can take the form of certain evidence or testimony being excluded or admitted, or certain witnesses being barred from testifying.
Evidence sanctions are intended to enforce compliance with discovery obligations.
Terminating Sanctions
Terminating sanctions are severe legal penalties imposed on a party to litigation that result in the dismissal of specific claims or defenses, or in a complete dismissal of their lawsuit.
These devastating sanctions are rarely imposed for minor instances of noncompliance. Rather, they are imposed when a party is willfully disobedient of court orders (e.g., by not complying with discovery requests), is making bad-faith attempts to obstruct the litigation process (e.g., by destroying evidence), or is employing abusive or frivolous litigation tactics (e.g., by making groundless claims).
When terminating sanctions are imposed, they effectively end a party’s capacity to pursue certain claims or assert certain defenses, or pursue the lawsuit in general.
How Long Does a Motion to Compel Take?
Although the duration for a motion to compel can vary based on circumstances, it generally takes around one to two months from the date you file the motion to receive the court’s ruling.
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