A motion to compel is typically one of the first motions an attorney practicing civil litigation may argue. Knowing how to effectively bring and defend a motion to compel is important in civil litigation because it has many advantages. When it comes to motions to compel, it is always good to keep in mind that judges are busy people and not very fond of discovery disputes. Therefore, think tactically before starting on the motion. Some of the simple tactics to follow while filing a motion to compel:
Act in good Faith
The State and Federal Rules of Civil Procedure require parties to meet and confer before bringing a motion to compel. Federal Rule of Civil Procedure, Rule 37 requires that a motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” However, there are no hard and fast rules as to what constitutes a good faith attempt to meet and confer. The non-producing party tries its best to delay producing the discovery material or refrain from producing the discovery at all. Therefore, be wary of these tactics and don’t get fooled or carried away by them.
Thorough Knowledge of the Case
Remember to keep the briefs in support of the motion as straight forward, simple and short as possible. If the facts section goes beyond 2-3 pages it needs to be shortened. However, this does not in any way mean that the attorney does not know the case well. The attorney should have thorough knowledge of the case as well as the supporting case law and statute depicted in as a concise manner as possible.
Limit citing voluminous authorities
Although important to cite precedential case law, an ordinary motion to compel need not cite unnecessary legal authority to support basic legal propositions. A single citation to the rule usually will do. Also, it’s good to avoid citing cases from other jurisdictions in motions to compel. However, there are exceptions to this rule. If there is a case from another jurisdiction that’s very relevant to your motion, that is needed to help set a standard, than go ahead and cite it.
Avoid Personal Attacks
Avoid personal attacks during discovery. Never make the argument that because the other party does not produce the requested discovery materials that you shall not produce yours. Additionally, it is in bad taste to claim that the other party is cheating or telling lies. If and when an attorney sees the opposite parties coming up with such arguments, take advantage of them by pointing it out to the judge that they are simply attempting to distract him from the issues presented in the motion.
Remember filing a motion to compel can be advantageous to the lawsuit if rightly done and must be approached with diligence.