A motion to compel is a legal document filed with the court that asks the court to order the other party to take a specific action. Usually, this is only filed within an active lawsuit as a discovery motion. For example, imagine you are in the middle of a lawsuit and the other side has failed to produce important documents that you requested months ago. You would file a motion to compel them to turn over those documents.

One of the most common reasons to file a motion to compel is in response to unanswered discovery requests, including requests for the production of documents, requests for admissions, requests for answers to interrogatories, requesting an individual to attend a deposition or appear for trial under a subpoena, or requesting the court to compel a response to a particular deposition question from the opposing side.

If a party fails to comply with an order to compel from the court, they may be found in contempt of court.

What is a Discovery Request?

Discovery process

Discovery is the process in a lawsuit through which parties may be required to provide information or documents relevant to the case. It usually is an informal process where each side sends a list of questions and the other side responds by answering questions or sending over the requested documents by the deadline imposed. This helps the parties obtain evidence to support their positions.

The deadline to respond to a particular discovery request is usually 30 days after the request for discovery is filed. When one or both parties fail to respond (or failed to fully respond) to the requests the opposing party sent, the other party can file a motion compelling further responses.

Types of Discovery

The types of documents which could be compelled in a motion to compel are as follows:

• Requests for production of documents. Requests production of documents relevant to the lawsuit, such as bank statements, letters, emails, recordings, audio/video recordings etc. May also be an inspection demand.
• Request for admissions. Requests that the opposing party admit or deny specific facts or claims in writing to narrow down the issues which must be addressed at trial.
• Interrogatories. Written questions submitted by each party to the lawsuit to the other party.
• Deposition. An in-person interview of a party or witness who has knowledge of the dispute outside of court to answer questions under oath.
• Subpoena. Process by which the court summons a witness to appear personally for a deposition, in court, or to appear to produce documents.

Process for Filing a Motion to Compel

Requirements for filing a motion to compel differ in federal courts and state courts, and state courts each have their own rules. Under rule 37 of the Federal Rules of Civil Procedure,  a motion to compel must include either the following:

• A certification that the movant has in good faith conferred and requested the information sought; or 
• Attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Before the Motion: Meet and Confer Letter

A “Meet and Confer” letter contains the discovery issues the party wishes to raise with the court and the party’s position on the discovery request. It will include:

1. Certification of good faith describing the party’s attempt to “meet and confer” in good faith and in person with the other party. The purpose of this meeting is to try and prevent the need for the motion for discovery. A good faith effort is found where the party trying to compel the other party’s responses to discovery waits several days after contacting the opposing party's counsel of record by telephone and facsimile transmission before filing the motion to compel.
2. Attempt to confer. While it can be found that a single letter between counsel addressing a discovery dispute may not satisfy the duty to confer, a multiple-page letter from one party's counsel to the other party's counsel stating that the letter was an attempt to avoid filing a motion to compel, setting a deadline for a response, and specifically detailing matters regarding requests for production of documents, has been found to have met the good-faith requirement for filing a motion to compel.

Before the Motion: Joint Stipulation

If the Meet and Confer letter fails and the dispute regarding discovery cannot be resolved by the parties, the parties may be required to file a joint stipulaton. This document is prepared by both parties together to submit to the court. Each side will detail their position regarding the disputed discovery claim. This process should begin as soon as possible after the failure to resolve the dispute after the Meet and Confer letter. 

Contents usually will include an introductory statement to the dispute, the disputed discovery documents, attempts in good faith to resolve the disputed discovery item, each party’s arguments in relation to each disputed discovery item, the signature of each party, a table of contents and a copy of the scheduling order to the joint stipulation. 

It is possible that the opposing party may refuse to participate in the joint stipulation process. In that case, the requesting party may elect to draft the joint stipulation on their own and file their motion to compel with a supporting document detailing the other party’s refusal to cooperate in the joint stipulation process. 

Documents Required for a Motion to Compel

A motion to compel typically consists of several separate docuements filed with the court:

1. Motion to compel. A legal document which requests  the court to issue an order to compel discovery.
2. Points and authorities. Supporting documents for the motion itself, which contain the details of the other party’s failure to comply with the discovery request and why this information is pertinent to the case
3. Separate statement of the disputed issues, which includes the text of the particular discovery request, all the responses, and the factual and legal reasons a further response is necessary.
4. Notice of hearing. A written notice provided to the other party to tell them that the motion to compel has been filed with the court, which includes the date and time it was filed.

Deadlines for Filing

A motion to compel must be filed within a reasonable time after the party receives the improper discovery response. It may be rejected by the court for being untimely if it is filed after the deadline for discovery or after the party becomes aware of the insufficient response to the discovery request. 

The FRCP does not set a time limit for motions to compel discovery. Courts have broad discretion to control discovery and determine the timeliness of motions to compel. For states, the deadlines for motions to compel will vary according to each state, so the requesting party should take this into account when filing.

Consequences for Non-Compliance of Court Order

If the other party does not comply with an order compelling discovery, the court may order that party to pay the moving party's reasonable expenses incurred in making the motion, including attorney's fees. The court may also order the non-complying party to provide the information or documents that were requested. In some cases, the court may find the non-complying party in contempt of court, typically resulting in fines. If you have been served with a Motion to Compel, it is important to consult with an experienced attorney to determine your best course of action.

Tips for Filing Your Motion to Compel

As the moving party, there are a few things you should keep in mind. First, make sure that you have exhausted all other options for obtaining the documents or information you're seeking. This includes informal requests and negotiations with the other party. Only after you've exhausted all other avenues should you file a Motion to Compel. Second, remember that a Motion to Compel is a formal legal document, so be sure to draft it carefully and include all relevant information. Third, be prepared to follow through if the court grants your Motion to Compel. This means being prepared to enforce the order if the other party does not comply.

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