Practice Hints for Motions to Compel
When starting discovery:
• Make the requests clear and narrow
• Start early enough to allow time to resolve motion to compel before discovery deadline
• Avoid the dialectic dilemma - you think you know what you want and what the opponent
has, you ask for a broad range, the opposition understands the request as overbroad and
perhaps cannot read what you really want in what you asked
When responding to discovery:
• Identify documents that are responsive
• Make an adequate privilege review and log
When negotiating extensions for discovery answers:
• Stipulate to extend time for answers not for objections
• Stipulate to shorten times for briefing any necessary motions
Make the ‘meet and confer’ meaningful:
• Get out of the “blame-shifting” mentality of litigation
• Meet in person - meet at the net, don’t lob grenades from backcourt
• Allow enough time to really discuss and resolve the problem
• Collaborate on the appendix1 for the motion - this process may resolve disputes
• Can you stipulate as to the issue?
Motion, Memorandum, Declaration, Appendix
• Draft assuming you will not argue the motion - don’t expect to be clear later
• Clearly state the relief desired
Be realistic - dismissal/judgment is unlikely unless conduct is egregious
• Don’t neglect to propose a narrowed request
• Get courtesy copies to the judge - even if e-filing
• If you need to expedite, ask opposing counsel and if counsel does not agree, ask the court
• Prepare an appendix and submit it in WordPerfect format
• Notify chambers if briefing is extended by agreement
• If the motion is resolved, withdraw it of record
Arguments not to make:
• They did it first
• They did it worse
• Its bad – because they want it
Expenses - Attorney’s Fees
• Based on contemporaneously created time records, with detail
• Justify rates in market
• Only include expenses incurred in the motion, not in discovery
1
DUCivR 37-1(b).
The Spectrum of Motions to Compel
Worst Cases Most Cases Minor Cases
Utter Failure Partial Response Dissatisfaction with answer
Failure to sign Requests construed to create
Inadequate privilege log dispute/burden
Failure to specify documents
Disputes about time frame and detail
David Nuffer July 2005
