The two types of motions to compel discovery

Although the rules of civil procedure don’t differentiate them, there are really two distinct types of motions to compel discovery: one addressing the untimeliness of the response and one addressing the inadequacy of the response.  Each type requires a very different strategy to prosecute.

The easier type is when the other party has simply failed to respond to discovery.  Typically I do not bring such motions until I have provided the other party at least one reminder of the failure to timely respond and granted at least one extension to respond.  However it still sometimes requires the filing and service of a motion to compel discovery to obtain discovery responses.

The other type of motion to compel is when the other party responds but the response is inadequate.  Often the inadequacy is because that response is allegedly evasive or incomplete.  The rules of procedure treat such responses as a non-answer.  As SCRCP 37(c), states, “an evasive or incomplete answer is to be treated as a failure to answer.”  Other times the answering party may raise an objection to the discovery and the party issuing the discovery believes the objection is improper.

When deciding a motion to compel discovery because there has not been any response the hearing judge has some easy questions to decide to resolve the motion: was a timely response to the discovery requests made and; was there some good reason a timely response could not be made.  Such motions can typically be resolved in 15 minutes.

When deciding a motion to compel discovery because the discovery responses are allegedly incomplete or evasive, or when an objection has been raised to the discovery, the hearing judge has to exercise greater judgment and has more discretion.  That judge needs to determine whether each objection is valid and whether each response at issue is incomplete or evasive.  This requires more time and thought.

In my experience a judge can rarely deal with more than ten allegedly inadequate responses in an hour and it helps the judge if the motion lists each allegedly objectionable response and explains why the response is incomplete or evasive, or why the objection is not well-founded.  Shotgunning such motions to compel by setting them for insufficient time, and not explaining within the motion why the response is incomplete or the objection is not well-founded, will frustrate the hearing judge and often lead to the motion being continued.  Even if the hearing judge does not continue such shotgunned motions, the proceeding is likely to be rushed and the decision hasty–which rarely helps the party bringing the motion.

When one files a motion to compel discovery because no responses have been provided and, before the motion is heard, the other party issues incomplete or evasive discovery responses, the temptation will be to use that motion hearing to address the inadequacy of the responses.  Avoid that temptation.  First it will undermine what should be a clear case for attorney’s fee and costs. SCRCP 37(d), states:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Emphasis added

However a latter portion of that same subsection reads:

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

While a failure to answer discovery is a clear-cut issue, whether responses are adequate is less clear.  One rarely wins on every issue in such motions to compel.  Thus, while one should routinely seek and be awarded fees when the opposing party fails to answer discovery in a timely manner, obtaining all of one’s fees when the motion involves the inadequacy of the responses is less likely.  When the motion to compel was initially filed due to no responses, dealing with the adequacy of the responses during the motion hearing shotguns one’s motion and reduces the likelihood of being awarded all of one’s fees.

Experience has taught that a better strategy is to simply seek one’s fees for having to bring the initial motion and obtain an order requiring the other party to provide “non-evasive and complete discovery responses.”  Then, one can bring a subsequent motion to compel, or even a rule to show cause, to address inadequacy of the post-motion-to-compel filing discovery responses.

In drafting and setting motions to compel one should consider whether the complaint is the timeliness of the response or the adequacy of the response and should avoid turning a motion brought over untimeliness into a motion over inadequacy.

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