The Role of Motions for Discovery in Legal Cases

Any litigator will eventually have to contend with motions to compel discovery (also known as “motions for discovery”). While both sides have the right to gather information through the discovery process, disputes on whether certain information should be disclosed to the other side are inevitable. This is why motions for discovery are filed and argued. 

Here, we explore in more detail the role of these motions in modern litigation.

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There are several reasons why you might bring a motion for discovery, including: 

• Forcing the other side to respond to discovery requests; 
• Providing additional responses when the original responses were inadequate; or
• Enforcing a discovery right you possess with or without a discovery request (for example, the required Rule 26 initial disclosures in federal court). 

Motions for discovery are important for getting the court to enforce discovery rules. Suppose the opposing party is not producing a witness for deposition, or they respond to your interrogatories with baseless objections and no substantive responses. A motion for discovery may be the best route for getting the information you need to advance your client’s case.

It should be noted that not all discovery-related motions are motions for discovery. For example, a motion for a protective order may be filed to protect your client from overly burdensome discovery or to keep certain information confidential, such as trade secrets. The motion for discovery is only used in situations where you are seeking information through the discovery process and the other side is not “playing ball”.

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Types of information and evidence sought in motions for discovery

To understand the role of motions for discovery, we first need to understand the types of discovery these motions seek. From there, we’ll examine the proper scope of discovery and how motions for discovery can test these limits.

Types of discovery:

The following are the three most common types of discovery that are the subjects of motions for discovery.

1. Oral testimony (depositions)

Prior to trial, you can use depositions to obtain oral testimony from parties and witnesses. Since the deponent’s answers to the attorney’s questions are under oath, you can lock the deponent into their story and explore the opposing side’s information and evidence. In addition, you can observe the deponent’s demeanor and manner of conducting themselves before they appear on the witness stand at trial.

If the other side fails to produce a witness in response to your deposition notice, a motion to compel the deposition would be appropriate. In more extreme cases, a person may appear for their deposition but refuse to answer certain questions, or their attorney might be overly obstructive. A motion to compel deposition testimony, focusing on specific areas of information, might then be the proper path.

2. Written discovery responses

Written discovery responses generally come in the form of responses to interrogatories or requests for admission. By getting the opposing party’s responses to questions, along with admissions or denials of key facts and contentions, you can narrow the scope of the case and better prepare for trial.

Sometimes, a party may simply fail to respond to written discovery. Even if a party responds, their responses may be filled with objections and lack substantive responses. The substantive responses themselves may still be evasive, even without objections. In all of these scenarios, a motion for discovery may ultimately be necessary to get the unwilling party to comply with their obligations.

3. Documentary or physical evidence

Requests for production are served to obtain or inspect documents or physical objects in the opposing side’s possession. In the modern digital age, many of these documents will be in electronic form, making electronic discovery (e-discovery) a key facet of litigation. E-discovery often requires more extensive court supervision and oversight.

Document productions are a primary source of discovery disputes. The responding party will often claim the requests are vague, irrelevant, or overly broad and intrusive. The propounding party will seek assurances that relevant documents are not being withheld. When the parties cannot resolve their differences (as is often the case), the motions for discovery will fly.

Scope of discovery

Your filing of motions to compel, and the discovery process itself, will be constrained by the allowable scope of discovery.

• The first requirement is that discovery must only seek information that is relevant to the case.
• In addition, certain types of information are considered privileged and protected from discovery.
• Finally, the requested discovery must not be overly burdensome in light of the size and complexity of the case.

Role of attorneys in preparing and filing a motion for discovery

Attorneys who prepare and file motions for discovery must be well-versed in the facts of the case and the reason the requested discovery is necessary. They must also be aware of the legal bases for any objections made by the other side. Finally, they must meet all the procedural requirements for the motion.

One key requirement for motions for discovery is the meet-and-confer obligation. Prior to filing the motion, you must generally meet and confer with the other side in an attempt to resolve the dispute without court intervention. Since motions for discovery are filed after meet-and-confer efforts have failed, you want those efforts to be well-documented to support your argument at the motion hearing.

Process for filing a motion for discovery

The process of filing a motion for discovery begins when the discovery requests are first served and can be briefly summarized as follows:

• Initiate discovery and review responses. If you do not receive responses by the legal deadline, or the responses are inadequate, proceed to the next step.

• Meet and confer with opposing counsel. Raise your issues with the other side’s discovery responses in writing, including the legal basis for your position where applicable. However, be wary of relying on written communication alone, since many judges will want to see efforts to resolve disputes done over the phone or in person.

• File the motion for discovery if meet-and-confer efforts fail. The discovery requests and responses (if any were served) must generally be attached as exhibits. Attach any evidence of meet-and-confer efforts, such as correspondence. 

Some jurisdictions may require a separate statement of the discovery responses in dispute, so check your jurisdiction’s rules carefully.

Common challenges and how to overcome them

Navigating motions for discovery can be challenging. Fortunately, you can anticipate and overcome these obstacles.

Lack of good faith participation in the meet-and-confer process

Although parties are required to participate in the discovery meet-and-confer process in good faith, this requirement is frequently violated. Unfortunately, many attorneys will simply seek to play games and delay rather than provide substantive discovery responses. It is your job to demonstrate you made all appropriate efforts to resolve the discovery dispute and the opposing party is at fault. 

Other litigation deadlines

Motions for discovery can be even more challenging to navigate late in the game or when you are facing a number of competing deadlines on the case—for example, at the discovery cutoff date or right before trial. This is why it is important to send your discovery early in the case and start the meet-and-confer process shortly after you determine that a motion for discovery is necessary.

Make use of the consequences for failing to comply with discovery requests

What makes motions for discovery effective is the consequences the court can impose on the losing party. These can include monetary sanctions, evidentiary sanctions (where certain types of evidence are not allowed at trial), or even terminating sanctions (where the case is dismissed or default judgment is entered in favor of one party). Make sure you specifically ask the court to impose appropriate consequences so the opposing side will sit up and take notice.

Final thoughts on filing a motion for discovery

Motions for discovery are a critical tool for successful litigation. They are your primary method of holding the other side’s feet to the fire when they fail to provide the information you need during the discovery process. Follow the above guidelines to experience success with these motions.

If you want to effectively resolve discovery disputes, you will want all your ducks in a row with respect to documents and client communication. Use Clio Manage to organize documents and collaborate with clients securely, so you have the bandwidth to file successful motions for discovery and win cases. Book a demo today!