Tcl - Motions to Compel from a Judicial Perspective - November 2005 - Judges' Corner
| Publication year | 2005 |
| Pages | 97 |
| Citation | Vol. 34 No. 11 Pg. 97 |
2005, November, Pg. 97. TCL - Motions to Compel From a Judicial Perspective - November 2005 - Judges' Corner
November 2005
Vol. 34, No. 11 [Page 97]
Judges' Corner
Motions to Compel From a Judicial Perspective
by Craig B. Shaffer
Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this column, please e-mail Judges' Corner Editor Judge Alan Loeb, Colorado Court of Appeals, at alan.loeb@judicial.state.co.us.
Judge Shaffer is a U.S. Magistrate Judge for the District of Colorado - (303) 844-2117
The noted psychologist Abraham Maslow once observed: "If the only tool you have is a hammer, you tend to see every problem as a nail."1 The myopic tendency described by Dr. Maslow is not unique to the construction trade. The Federal ("Federal Rules") and Colorado Rules ("Colorado Rules") of Civil Procedure provide attorneys and litigants with several procedural tools, each with its particular advantages and inherent limitations. The Rules also vest litigators with considerable discretion as to when and how to use these tools in the pretrial process. In the final analysis, the "just, speedy, and inexpensive determination of every action"2 depends on the common sense and practical wisdom of counsel.3 Motions to compel should be approached with the same degree of common sense.
Discovery procedures set forth in the Federal and Colorado Rules seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information.4 To that end, a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party.5 I readily acknowledge that every discovery dispute is case specific, both in terms of the issues presented and the lawyers involved. For that reason, it may be difficult to draw too many generalizations.
In my experience, both as a litigator and as a federal magistrate judge, the vast majority of civil actions do not generate discovery disputes. In most cases, counsel efficiently completes discovery without having to resort to motions to compel or motions for sanctions. However, in a minority of cases, discovery disputes become contagious. One motion to compel leads to another, until the parties have lost sight of the real objectives of the litigation. This article offers some practical suggestions that may save litigants both time and money.
Duty to Confer
Rule 37(a)(2)(B) of the Federal Rules requires that a motion to compel include a certification that the movant "has in good faith conferred or attempted to confer with [the opposing party] in an effort to secure the information or material without court action."6 The same duty to confer is imposed under Rule 7.1A of the Local Rules for the U.S. District Court for the state of Colorado ("Local Rules"). Both the Federal Rules and the Local Rules contemplate that the parties will engage in meaningful efforts to eliminate or reduce their discovery disputes prior to seeking the court's assistance. Nevertheless, all too often, I receive motions to compel where counsel has paid little more than lip service to the "meet and confer" requirement. For example, sometimes the moving party will certify that he or she left a message with opposing counsel but did not receive a reply. On other occasions, he or she will candidly concede ignorance of the opposing counsel's position on the requested relief, having simply assumed opposition on the matter.
Counsel should bear in mind that the "duty to confer" is more than a mere formality and contemplates a genuine...
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