Chapter 13 Making the Kitchen Hotter Effective Use of Motions to Compel

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 13 Making the Kitchen Hotter Effective Use of Motions to Compel David R. Pruet III

Harry S. Truman reportedly coined the old adage, "if you can't stand the heat, get out of the kitchen." Unfortunately for lawyers, though, getting out of "the kitchen" is rarely an option. Lawyers are therefore well advised to carefully consider their options before turning up the heat by filing a motion to compel discovery.

There is little wonder why discovery motions tend to turn up the heat. By definition, the motion's outcome determines what information a party is able to obtain and ultimately present at trial. While an adverse ruling on a discovery motion might not in and of itself preclude counsel from pursuing a particular argument or line of questions at trial, the prospect of doing either without having first obtained discovery from the opposing side can be risky and is certainly not appealing.

Raising the stakes even higher, discovery motions typically involve a court's first opportunity to decide a contested issue and often involve a court's first substantive exposure to a lawsuit on any level. By the same token, discovery motions afford counsel with an opportunity to educate a court about what a case is about—usually without making formal submissions of evidence. These first impressions about the merits of a lawsuit, and the reasonableness of the parties' positions, can set the stage for later rulings directed to the merits of claims and defenses.

Compounding matters, judges seem to have a near universal disdain for discovery disputes, and for good reason. Practically speaking, the resources and support staff necessary to adjudicate tedious discovery disputes are often unavailable. Setting these practical considerations aside, though, many discovery motions must appear, at least on the surface, to involve trivial issues that should be susceptible to resolution without court intervention. And, all too often, in order to decide a discovery motion, the court must sift through layers upon layers of supposed misdeeds bandied back and forth between counsel.

Yet, this understandable judicial predisposition against discovery motions does not necessarily tip the scales in favor of the party pursuing or the party resisting the motion to compel. Frequently, these judicial-oriented considerations simply result in a discovery motion remaining under submission for a lengthy period of time until a court has the time and inclination to reach the motion or until the parties are able to resolve the motion on their own.

The rub is that close judicial scrutiny is often precisely what is required to ensure the fair and appropriate exchange of information, particularly in complex litigation. This is because the significance of the information being sought in a discovery motion is not always apparent from the pleadings, particularly in the early stages of a lawsuit. In other situations, a party's failure to produce the type of information being requested, or the insufficiency of the information already produced, may be undetectable without examining individual discovery responses or document productions.

On the other hand, even where the discoverability of the information in question seems clear, other considerations can come into play, such as the potential consequences, favorable or not, that may result from a motion to compel. In other situations, there may be alternatives to pursuing a discovery motion that serve the same end without raising the stakes.

The lesson, then, is that counsel should be careful to avoid "making the kitchen hotter" by filing a motion to compel without good reason for doing so. Having said that, the most experienced, and well-intentioned counsel can disagree about the proper scope of discovery, and, in those situations, a motion to compel provides an indispensable tool for securing critical information. To be effective, though, counsel must carefully frame and present the motion so the court will recognize the significance of the discovery being sought and the necessity of the court's intervention.

Setting the Table: Developing the Record

Developing a record to support a motion to compel involves consideration of all types of information and evidence that may eventually be submitted to the court when it decides the motion. Thus, the record embraces everything from discussions between counsel, to witness testimony, to the discovery requests themselves. Throughout the process of developing that record, the goal is to establish both the importance of the information being sought and the reasonableness of counsel's efforts to secure the information before filing a motion to compel.

Pre-Discovery Conferences

In some situations, where an area of contested discovery is foreseeable from the outset, counsel can begin to develop a record before a discovery request is even served. Particularly if the relevance of the contested discovery may not be readily apparent to the court, counsel should consider raising the potential discovery issue during the parties' planning meeting or during an initial scheduling conference.

The idea here is not necessarily to begin debating the relevance of the discovery before the dispute is ripe. Rather, the point is simply to call the potential issue to everyone's attention and to inform the court that counsel will continue to discuss the issue in an effort to avoid having to seek relief from the court. The court therefore receives a brief preview of the issue, which may help lay the foundation for a more robust argument down the road. More importantly, though, counsel has signaled to the court that the issue is important while at the same time demonstrating counsel's commitment to avoid filing a discovery motion unless necessary.

As an additional benefit, after being alerted to the potential discovery issue, opposing counsel may elect to avoid the discovery dispute altogether by agreeing to produce the information, or opposing counsel may begin the process of addressing the discovery issue with their client before discovery requests are even served. At a minimum, the parties are afforded additional time to discuss and potentially resolve the issue.

Unfortunately, more times than not, the areas of contested discovery are either unforeseeable during the early stages of a lawsuit or they are simply too nebulous to address with opposing counsel or the court until a lawsuit has begun to unfold. There are still important steps that can be taken to develop a proper record once a contested area of discovery emerges.

Preparing Discovery Requests

If a discovery motion becomes necessary, the content of the discovery request can be just as important as the opposing party's response to that request. After all, it is difficult to persuade a court to grant a motion to compel if the information being sought was not clearly requested in the first place. In fact, some jurisdictions require that any motion to compel quote the requests and responses at issue verbatim. It is therefore important to closely consider the terms and scope of a discovery request before serving it.

As a threshold matter, if a dispute evolves concerning an opposing party's response to a discovery request, it needs to be clear to the court that the disputed information was encompassed by the terms of the request. The discovery request should therefore plainly define and identify the information being sought.

Sometimes, of course, the precise types of information an opposing party possesses are not known, and it is difficult to predict how an opposing party, particularly a...