Understanding Motions to Compel in Civil Litigation
How to Enforce Your Discovery Rights When Your Opponent is Playing Games
You must investigate and discover the facts of your case to win at trial or negotiate a favorable personal injury settlement after an accident. Both the good facts and the bad.
This is true in all types of civil litigation, including tort claims and car crash cases based on negligence, workers compensation, insurance claims, applications for Social Security Disability, and breach of contract actions.
You will have access to or control over many facts and evidence sources.
However, some evidence will be solely within the other party’s control. Or possessed by someone not involved in the litigation. And you will need to use all available legal devices to get it.
Formal discovery is one method to investigate and develop your case. It refers to the required disclosure of information related to litigation when requested by a party.
Procedural rules supply several formal discovery tools: interrogatories, requests for production of documents and other tangible items, requests for admissions, depositions, compulsory medical examinations, and motions to inspect the property, products, or machinery. And each discovery device has advantages and disadvantages.
But what if you use these discovery devices, but the other party refuses to answer your requests?
Or what if the defendant answers interrogatories but gives incomplete answers?
These situations often happen, especially in cases against automobile liability insurance companies and the manufacturers of defective products. And you may have to force the issue to get a stonewalling defendant to turn over the evidence or make someone knowledgeable about the facts available for deposition.
Fortunately, there are state and federal rules of civil procedures governing discovery. And these rules give relief if the defendant ignores your discovery requests or refuses to supply the information you asked for.
This relief may include sanctions such as punishment for contempt, the assessment (shifting) of attorney fees, striking of the pleadings or defenses, and the exclusion of evidence (including witness testimony).
But first – you must file a motion to compel discovery with the court or commission to enforce your discovery rights. And persuade the judge or deputy commissioner that the defendant’s obstruction violates the discovery rules.
This article discusses the first step in getting judicial help to enforce your right to discovery so that you have the facts to tell a persuasive story at trial: the motion to compel. It explains when to bring motions to compel discovery, how to draft them, and how to win them. You can use this information to get the facts you need to win your case in any jurisdiction.
Keep reading to learn more.
And if you have any questions about your claim, contact my firm for a free consultation. See why others have named me one of Virginia’s best personal injury lawyers. And what I can do for you.
What is a Motion to Compel Discovery?
If the opposing party or a witness fails to respond to a proper discovery request, you may file a motion with the court for an order compelling a response or act.
An improper objection or incomplete answer to discovery is considered a failure to respond in some situations.
The motion to compel discovery is the formal pleading asking the court to enforce a request for information or documents or specific action relevant to the case.
Types of Motions to Compel: Situations Where You Might Ask the Court to Enforce Discovery Requests
Motions to compel apply to all types of discovery requests.
For example, you may file a motion to compel discovery to force:
- The opposing party to answer interrogatories when it has failed to do so.
- The opposing party to answer an interrogatory when it makes an improper objection to the question and gives an evasive or incomplete response.
- A person to answer specific deposition questions. This is useful when dealing with a corporate representative or defense medical expert trying to avoid answers that harm your opponent.
- The opposing party to designate a deponent on behalf of the corporation when suing a corporate party.
- The opposing party or a third party to produce a tangible item central to the case, such as a defective product
- The opposing party to produce documents (such as safety manuals or company policies).
- The opposing party or a nonparty to permit inspection of the premises (for example, the accident scene).
- A third party to produce requested documents (such as medical records or payroll statements).
- A third party to comply with a subpoena.
- A witness to attend a deposition, workers comp hearing, or trial.
The motion to compel is a flexible tool to get evidence in someone else’s possession to tell your story at mediation, arbitration, or trial.
What to Do Before Filing a Motion to Compel Discovery: The Good Faith Letter to Opposing Counsel (Meet and Confer)
Many courts (though not all) require a party to contact their opponent to resolve the discovery dispute without court intervention. If these efforts fail or get ignored, the party may file a motion to enforce discovery.
For example, Rule 4:12 of the Rules of Supreme Court of Virginia states that the party filing the motion to compel must include a certification that it “has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”
And Federal Rule of Civil Procedure 37 has a similar requirement.
The Rules of the Workers’ Compensation Commission, however, do not. However, it is still a good idea to do so.
Motion to Compel Discovery Checklist: What to Include
You should always check your court’s local rules before submitting a motion.
Generally, however, you should consider including the following items when filing a motion to compel discovery:
- Notice of the motion: You must provide reasonable notice that you have filed the motion to compel discovery. In Virginia, you must serve written notice at least seven days before the hearing. Many circuit courts, however, require at least two weeks’ notice and have scheduled hearing days. For example, some courts hear discovery motions on Friday.
- Motion to compel
- Certificate of good faith attempts to confer: Your notice of motion must include a certification that you have in good faith attempted to resolve the discovery dispute without court action.
- Disputed discovery: The motion should include a copy of the discovery request and any response received.
- Certificate of service: All motions must include ither acceptance of service or a certificate of counsel that copies were served as the procedural rules require. This certificate includes the date of delivery and method of service.
- Request for oral argument: I recommend asking for oral argument in most cases so that you can answer any questions the judge may have from your motion or brief.
- Exhibits: You may include any other document supporting your position. For example, I recommend attaching a copy of the complaint so that you can use the factual assertions to argue the relevance of the discovery request in dispute.
- Brief or memorandum of points and authorities: You may use this document to argue that specific procedural rules, statutes, or case law support your motion to compel discovery responses. In response, the party or witness resisting discovery may file a brief in opposition.
- Draft Order Compelling Discovery: The judge will sign this document if the motion is granted.
Where Do I File the Motion to Compel?
In most situations, you must move for an order compelling discovery in the court where the action is pending.
However, there are some exceptions.
For example, if you seek discovery from a nonparty, the motion may have to be filed in the court with jurisdiction where the nonparty resides or will be deposed.
Sample Motion to Compel Response to Discovery
Below are two sample motions to compel the defendant’s answers to interrogatories and requests for the production of documents.
The first example provides a template for bringing a motion to compel discovery when the person you seek discovery from has ignored your requests.
The second example is a template for motions to compel discovery when the other party responds with objections or evasive and incomplete answers.
Both sample motions to enforce discovery include a brief description of the lawsuit, a summary of the relevant facts, and a timeline of efforts to get the other party to comply with the requests in dispute.
You can build on this template when bringing a motion to compel discovery in civil court or before a workers compensation board.
Motion to Compel Discovery #1 (When Requests are Ignored Completely)
IN THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS
Ace Jones,
Plaintiff,
v.
Michael Smith,
Defendant.
PLAINTIFF’S MOTION TO COMPEL DISCOVERY RESPONSES FROM DEFENDANT
By and through his attorney, Corey R. Pollard, Plaintiff Ace Jones moves this Honorable Court to enter an order compelling Defendant Michael Smith’s response to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents. In support of his motion, Plaintiff states:
1. Plaintiff filed a Complaint alleging Defendant negligently operated an automobile and caused personal injuries to Plaintiff. See Exhibit A.
2. Plaintiff served Interrogatories, Requests for Production of Documents, and First Requests for Admissions on Defendant on December 5, 2022. See Exhibits B-D.
3. Defendant filed an Answer on December 20, 2021. See Exhibit E.
4. The time for response under the Rules of Supreme Court of Virginia has expired.
4. Plaintiff’s counsel sent two separate letters to Defendant’s counsel asking Defendant to answer discovery or provide the date he will respond. See Exhibits F-G.
5. Plaintiff’s counsel has not received Defendant’s answers to Interrogatories or Requests for Production.
6. The discovery requested is reasonably calculated to lead to the discovery of admissible evidence and, therefore, is within the scope of discovery under the Supreme Court of Virginia Rules.
7. Rule 4:12(a) of the Rules of Supreme Court of Virginia states, “A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery …”
8. Plaintiff has ignored the Virginia Rules and ignored multiple requests to respond.
Accordingly, Plaintiff moves for an order compelling Defendant to answer interrogatories and requests for production of documents within fourteen (14) days. In addition, Plaintiff asks the court to set out in its order compelling discovery what the sanctions will be if Defendant fails to obey. Further, Plaintiff asks the court to assess all reasonable attorney fees against Defendant as permitted by law.
Sincerely,
Corey R. Pollard
Motion to Compel Discovery #2 (When the Answers are Incomplete or Ignored)
IN THE CIRCUIT COURT FOR THE CITY OF VIRGINIA BEACH
Jill Todd,
Plaintiff,
v.
Lewis Young,
Defendant.
PLAINTIFF’S MOTION TO COMPEL DISCOVERY RESPONSES FROM DEFENDANT
Jill Todd (“Plaintiff”), by counsel and under Rule 4:12 of the Rules of the Supreme Court of Virginia (“Rules”), moves to compel Defendant, Lewis Young, to give specific information and documents in response to Plaintiff’s interrogatories and requests for production of documents.
1. On July 1, 2020, Plaintiff, through her counsel, issued a spoliation letter to Defendant. See Exhibit A.
2. On September 15, 2020, Plaintiff filed her Complaint and served it. She alleges Defendant’s negligence caused personal injuries, including a back injury, traumatic brain injury, and post-concussion syndrome. See Exhibit B.
3. Plaintiff also served her First Set of Interrogatories and Requests for Production of Documents to Defendant on September 15, 2020. See Exhibit C.
4. On September 28, 2020, Defendant served her Responses to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents. See Exhibit D.
5. Defendant’s responses are inadequate and evasive and include unfounded objections.
6. Interrogatory Number 2 asks Defendant to identify and provide contact information (addresses, telephone numbers, and e-mail addresses) for persons believed to know the facts in the Complaint and Defendant’s answers and a summary of the information. Defendant listed fifteen persons in response but provided no addresses, phone numbers, or e-mail addresses. Nor did he give an overview of their knowledge. This information is reasonably calculated to lead to the discovery of admissible evidence and would allow Plaintiff to force these individuals to attend a deposition or trial.
7. In response to Request for Production Number 1, Defendant refused to provide copies of any photographs taken of the vehicles involved in the accident in question. Instead, he claimed this information is privileged under the attorney work product doctrine. However, he fails to include a privilege log identifying his photographs. In addition, the request is limited to time as it requests photos taken on the accident date or within the two months following the accident. Further, Plaintiff can establish a substantial need for these photographs, which will help her recreate the accident scene.
8. Plaintiff, through her counsel, has attempted in good faith to resolve these discovery disputes.
9. To the extent Defendant refuses to answer or produce the documents described above, Plaintiff moves for sanctions to include an adverse inference jury instruction or striking of the defenses.
Sincerely,
Corey R. Pollard
Potential Outcomes After a Motion to Compel Discovery
The judge has several options after both sides present their case to the court, either at oral argument or through written briefs:
- The judge may grant the motion and enter an order compelling disclosure or discovery by a deadline; or
- The judge may grant the motion in part and deny it in party, requiring only some of the discovery; or,
- The judge may deny the motion.
- The judge may grant a motion for protective order or motion to quash discovery if filed by the other party.
If you win the motion to compel (either in full or in part) and the opposition refuses to comply with the order, you may submit a second motion for sanctions for failure to comply with the court’s order to provide discovery.
Does the Opposing Party or Nonparty Witness Have to Pay Attorney Fees and Expenses if the Court Grants the Motion to Compel?
You may ask for an award of expenses related to the motion.
However, I do not recommend doing so unless the other party’s conduct was egregious, or it has a pattern of non-compliance in discovery.
This is because courts will not award attorney fees or expenses for a motion to compel discovery if the opposition to the motion was substantially justified or other circumstances make an award of expenses unjust.
Get Help with Discovery
Formal discovery is a tool to get the facts and documents needed to tell your story during litigation.
Unfortunately, some attorneys and defendants will do everything they can to keep you from getting the information you are entitled to.
But do not give up.
Use the rules to enforce your discovery rights during a personal injury claim.
And if you need high-quality legal advice to navigate the legal system, call our firm for a free consultation: (804) 251-1620 or (757) 810-5614.
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