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Trying to obtain information for legal discovery or eDiscovery isn’t always easy. When you request information from another party, you’re ultimately just inquiring about it—not forcing them to reply. In other words, the opposing party has the right to refuse or ignore your request.
It’s important to realize that if another party ignores your request for information, you can potentially issue a motion to compel and get what you need.
Keep reading to learn how a motion to compel works and how it fits into the discovery process.
What Is Discovery?
Here’s a quick primer on discovery for those who are new to the topic.
Discovery is a process that occurs before two teams go to trial, where legal teams share relevant information with one another. First, the plaintiff and defense teams have a meet-and-confer session. Following this meeting, the two teams can formally request information and evidence from the other party.
The term “discovery” applies to physical evidence, while “eDiscovery” is tied to electronically stored information (ESI).
In brief, discovery and eDiscovery both operate under the Federal Rules of Civil Procedure (FRCP). This is a set of 86 rules that explain how district courts should function that was put into place to help create cohesion across jurisdictions.
Responding to a Discovery Request
Rule 34 of the FRCP says that a receiving party must respond to a request for discovery within 30 days after the serving date.
In the event that a request falls under Rule 26(d)(2), the party can respond within 30 days after the parties’ first Rule 26(f) conference. The court may shorten or extend the time under Rule 29 or by court order.
In any event, the responding party ultimately has three options.
1. Comply With the Request
Ideally, the responding party will respond to the request for discovery or eDiscovery within the acceptable window.
Under Rule 34(b)(2), the response should state that the inspection and related activities can take place as the request indicates.
2. Object to the Request
Rules 34(b)(2)(B) and (C) also grant the responding party the right to object to a discovery request.
The party must state the specific grounds for objecting to the request, including the reasons. Further, the objection must state whether the party is withholding any responsive materials based on the basis of the objection. The objection must also state the exact part and allow inspection of the rest to commence.
The court might choose to grant an objection, in which case the party would not have to comply with the request. Or the court could choose to deny the objection and legally force the party to provide evidence.
3. Ignore the Request
Being that a discovery request is just an inquiry and not a court order, the responding party may choose to ignore the request.
When a responding party ignores a request, the person issuing it may choose to follow up with a motion to compel.
What Is a Motion to Compel in Discovery?
Rule 37 of the FRCP says that a party may move for an order compelling the opposing side to disclose certain information pertaining to discovery.
This can only take place after attempting to confer with the other party or failing to obtain discovery or disclosure without court action.
In other words, you can’t start a discovery or eDiscovery process by going straight to the court and asking them to force the other party to provide information. You first have to try to obtain the information by submitting a formal request.
What Does “Motion to Compel” Mean?
A motion to compel is an official request to force another party to provide information.
The purpose of a motion to compel is to access information that can help you either form a case in court or defend.
Grounds for a Motion to Compel
A party can seek discovery for an order compelling an answer, production, designation, or inspection under the following circumstances:
- A deponent avoids a question under Rule 30 or Rule 31.
- A corporation or entity fails to make a designation under Rule 30(b)(6) or 31(a)(4).
- A party doesn’t answer an interrogatory under Rule 33.
- A party fails to produce documents or permit inspection under Rule 34.
Moreover, a party may move to compel disclosure and for appropriate sanctions if another party fails to disclose under Rule 26(a). An evasive or incomplete disclosure, answer, or response is the same as a failure to disclose, answer, or respond to a request.
For an oral deposition, the requesting party may complete or adjourn an examination before moving for an order.
Rule 37(a)(2) says a motion for an order to a party must occur in the court where the action is pending. A motion for an order to a nonparty must also take place in the court where the discovery is or will take place.
What Can You Request in a Motion to Compel?
1. Electronically Stored Information (ESI)
Rule 34 classifies ESI as writings, drawings, graphs, photographs, charts, images, sound recordings, and other data or data compilations.
2. Tangible Evidence
It’s also possible to request the discovery of any tangible things. For example, this may include clothing, physical photographs, paper documents, or a weapon like a gun or a knife.
Rule 34 also permits entry onto designated land or other property that the responding party controls or possesses. The point of an inspection is to allow the requesting party to measure, inspect, photograph, survey, test, or sample the property or objects on it.
What Happens If Someone Refuses to Obey a Motion to Compel?
Rule 37 (b) says if a deponent fails to obey, it is grounds for contempt of court.
Section (b)(2)(A) issues sanctions for not obeying a discovery order. If a party or party’s officer, director, or managing agent fails to obey a discovery order, the court may issue further orders.
A court must also order a disobedient party, the advising attorney, or both to pay expenses resulting from the failure to reply.
What Should a Motion to Compel Contain?
To issue a motion to compel, you should draft a letter and address it to the district court.
The letter should contain the nature of the questions at hand, the response or objections of the receiving party, arguments supporting the motion, and certification for either conferring or attempting to confer in good faith with the person or party. At the end of the letter, it’s necessary to formally ask the court to produce the information through an order.
If the court accepts the motion, the judge will issue an official court order granting the motion to compel.
Responding to a Motion to Compel
A receiving party has the right to file a response to a motion to compel.
The response must contain justifications for objecting. The recipient should also show why their previous answers suffice.
Avoid eDiscovery Complications With Venio
To succeed in court, your team needs to be able to respond to eDiscovery requests quickly and efficiently.
This is where it helps to have a centralized cloud platform like Venio Cloud, which makes it easy to request, store, and share information. Venio Cloud streamlines all aspects of the eDiscovery process from early case assessment to judgment and beyond.
To experience Venio Cloud in action and improve your eDiscovery outcomes, request a demo today.
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.