Motion to Compel

1. Motion to Compel A party is entitled to secure discovery from another party without court intervention.

2. When a party refuses to comply with proper discovery requests, the party seeking discovery should file a pretrial motion to secure an order compelling the other party to respond.

3. The Grounds • A party may file a motion to compel discovery and request a hearing in the following instances.

4. Motion to Compel Answer • Refusal to appear or answer questions at deposition. • File a motion to compel along with a copy of the deposition (or certified question), and request a hearing. • Certified question is an excerpt from the deposition prepared by the court reporter to be used when a party intends to ask for an immediate court ruling.

5. Inadequate Answers to Interrogatories • Objection to Answers • Move to compel answers. A party may file a motion to compel answers if the interrogatories are not answered, not answered properly, or the responding party files objections.

6. Object to technical defects. • To take advantage of any technical defect in the answers during the trial, the party who served the interrogatory must object at the time the answers are served. • Objections must be made before trial to give the answering party time to correct the defect.

7. Inadequate Responses to Request for Admissions • Challenging answers • If the court determines that an answer does not comply with TRCP169, the court may deem the request admitted. • Evasive Answer- The party who served the request should challenge answers that do not specifically deny or affirm the requests. The court may treat an evasive answer as a failure to answer, thus the request may be deemed admitted.

8. Quibbling – The party who served the request should challenge answers that quibble over the meaning of simple words. If an answer quibbles over the meaning of a word, the court may hold the answer is evasive and will deem the question admitted.

9. Inadequate Response to Request for Production • Compelling Production & Sanctions • If the party or nonparty responding to the request or motion for production refuses to produce documents, the party requesting documents can move to compel their production and move for sanctions.

10. Sanctions against party. • When a party refuses to produce a document that was properly requested, the trial court can exclude the document, limit the testimony about the document or the issue, or impose any other sanction listed in TRCP 215.

11. Sanctions against nonparties. • The only sanction the court may impose on a nonparty for failure to comply with an order under TRCP 167 is contempt.

12. Refusal to Follow Agreed Schedule • When a party does not comply with a TRCP 11 agreement setting deadlines for discovery, the other party should file a motion to compel compliance.

13. After Objection to Discovery • When a party files objections to a discovery request, a motion to quash, or a motion for protective order, the party seeking discovery can either move for a hearing on the objections or file a motion to compel production, or both.

14. The Advantage of Filing a Motion to Compel • The advantage of filing a motion to compel, instead of merely asking for a hearing on the other party’s objections, is that expenses and attorney fees are available on a motion to compel.

15. Motion for Sanctions • A motion for sanctions requests the court to enter an order penalizing the opposing party for failure to comply with discovery requests. • A motion for sanctions does not require compliance with discovery.

16. Purpose of Discovery Sanctions • To secure compliance with the rules of discovery. • To deter other litigants from violating the discovery rules, • To punish parties that violate the rules of discovery, and • To promote settlements.

17. The Standard • Discovery sanctions must be “just” and not excessive

18. Three Part Test Direct • 1. Direct Relationship. The court must impose a sanction that has a direct relationship between the offensive conduct and the sanction • (striking pleadings is not appropriate sanction for the failure to designate a witness; proper sanction is to exclude the witness)

19. 2. Necessary severity. The court must not impose a sanction that is more severe than necessary to promote full compliance. • (incomplete answers to discovery did not justify default judgment in child custody suit)

20. Conduct shows lack of merit. The trial court should not impose a death penalty sanction (default or dismissal), unless it decides the party’s conduct justifies the presumption that the party’s claims or defenses lack merit)

21. Grounds for Sanctions • 1. Sanctions for failure to identify witness. When a party does not identify a fact or an expert witness before trial, the trial court may exclude that witness’s testimony at trial. “Objecting to unidentified witness.”

22. 2. Sanctions for false testimony. When a party gives false testimony, the trial court may impose appropriate sanctions. (monetary sanctions for failure to disclose post-injury wages, causing extra depositions of doctors, court imposed monetary sanctions)

23. Types of Sanctions • Stay further discovery by offending party. • Attorney fees & costs. Taxable court costs, attorney fees, and other expenses incurred in the pursuit of the discovery. • Strike pleadings. Strike all or part of pleadings, stay proceedings until the disobedient party obeys the order, dismiss with or without prejudice all or part of the suit, or render default against the disobedient party.

24. Death penalty sanctions. Request other penalties first. Cause should be without merit.

25. Sanctions for discovery abuse discovered at trial. • Establish facts as sanction • Exclude evidence beneficial to disobedient party. • Prevent disobedient party from supporting or opposing claims.

26. Duration of sanctions that exclude evidence • Because the purpose of sanctions that excludes evidence for failure to respond to discovery is to require complete responses and prevent trial by ambush, if the trial is postponed, the sanction does not survive to the next trial.

27. Persons Against Whom Sanctions May Be Imposed • The party. The court may sanction the party for discovery abuse. • The lawyer. If the lawyer was responsible for the discovery abuse and the party was unaware of it, the court should sanction the lawyer, not the party • The nonparty. Contempt for refusing to comply

28. Hold in contempt. The court may treat the failure to comply with an order of discovery as contempt. The only sanction against a nonparty is contempt.

29. Failure to comply with TRCP 167a(a). • When a party does not comply with an order under TRCP 167a(a) to appear or produce another for examination, the sanctions are limited to those in TRCP 215(2)(b)(1).

30. Monetary fine under TRCP 215(2)(b). • Cannot be arbitrary and must relate to the harm suffered by the other party.

31. Enter other orders that are “just.” • Community service,ordering the production of information compiled by the lawyer and protected as work product. Like death penalty sanction.

32. 3. Sanctions for abuse of discovery. The trial court can look to a pattern of discovery abuse to justify sanctions. E.g., frivolous objections to discovery. (lawyer filed 9 pages of objections to interrogatories and did not attempt to answer any of the interrogatories).

33. 4. Sanctions for offensive use of privilege. When a party asserts a privilege that prevents disclosure of evidence necessary to the lawsuit, the court may impose sanctions to offset the harm. Party who is seeking affirmative relief should not be permitted to maintain both the lawsuit and the privileges that protect evidence that is necessary for the lawsuit.