“Shotgunning” motions to compel discovery

While the rules of civil procedure don’t create a distinction, there are really two types of motions to compel discovery.  The first type of motion to compel seeks to compel a party that hasn’t answered discovery to answer discovery.  See SCRCP 37(a)(2).  The second type of motion to compel is based on SCRCP 37(a)(3), which treats evasive or incomplete discovery responses as a failure to respond.  However the proof issues for a non response are quite different than the proof issues for an allegedly incomplete or evasive response.

Motions to compel brought due to a failure to respond at all are relatively straightforward.  In South Carolina, where the family courts tend to schedule motions in 15 minute increments, such motions can be handled in 15 minutes.  After all, either the opposing party/attorney did or didn’t respond to the discovery.

However motions to compel brought due to allegedly evasive or incomplete answers are more detail oriented and require more time, often much more time.  I occasionally observe attorneys trying to shoehorn a multiple issue (sometimes dozen or more issue) motion to compel based on allegedly evasive or incomplete answers into one 15 minute time slot.  Typically these attorneys will make broad claims of evasive or incomplete answers and the judge will get frustrated because the myriad issues can’t be resolved in a quarter of an hour.

Early in my career, I tried to handle a motion to compel regarding alleged incomplete and evasive answers by broadly claiming the answers were evasive or incomplete.  The judge warned me against “shotgunning” such motions and told me I needed to take time and go through each allegedly improper response individually.  Based on this wise counsel, I no longer schedule motions to compel for only 15 minutes when the claim is that discovery responses are incomplete or evasive (unless I am only dealing with a few responses).  Often, I ask for an hour–sometimes more–to resolve these motions, so that the judge can have time to consider each allegedly evasive or incomplete response individually.  I sometimes observe frustrated attorneys whose motions to compel are continued or remain otherwise unresolved because not enough time has been set aside to deal with the numerous claims of improper responses.  As the wise judge would have told them, they were trying to shotgun their motion to compel.

A problem that I frequently encounter in motions to compel are situations in which a party has provided no response when the motion is filed but then provides an incomplete or evasive response prior to the motion hearing.  In theory, I could go to the motion hearing to seek fees for having to bring the initial response and then file a second motion to compel to address the incomplete or evasive responses.  In practice, I try to deal with the incomplete and evasive responses in the initial 15 minute time slot and, if the judge gets frustrated, note that when the motion was filed, I didn’t have responses at all and the opposing attorney’s (or party’s) lack of diligence is creating the docketing problem.  It’s not an ideal solution and I am open to suggestions on a better one.

Meanwhile, don’t shotgun motions to compel based on claims of evasive or incomplete answers and make sure you set enough time aside for these motions.


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