The two types of motions to compel discovery

Posted Sunday, March 30th, 2014 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

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.

7 thoughts on The two types of motions to compel discovery

  1. Ali says:

    I just started working at a firm that handles South Carolina cases and am writing a motion to compel as my first assignment… As a 1L this was very helpful. Thanks for the info!

  2. Carmen Kimball says:

    Am working on a Probate case and the opposition attorney has totally ignored us so am researching orders to compel. Thank you very much for some very useful information that I will have to relate to Arizona law. An interesting question came up, As ProPer, how do attorneys fees fit in or not fit in?

  3. Cannon Skidmore says:

    I found this informative and helpful – Thank You.

  4. pennie says:

    est write this to you but, I’ll try to sum it up and keep it simple. If I need to provide any other facts or you need documentation please don’t hesitate to let me know as this would make a great Christmas gift or would start off the New year with a sour note for the party whom its intended.

    I also if you haven’t noticed I’m a bit angry and out for blood and I hope to get his foot off my neck once and for all and not only get justice if I can find that he gets charged with criminal charges for perjury, fraud and contempt of court. I Hope to be awarded max damages then and now for undue hardship emotionally, financially and that he pays punitive damages as well. I want everything allowed by the court in the max.


    On Aug. 20, 2014 I Pennie Baccellia was doing further research into how my child support could be upwards of $56,000 if the order was made around such time as when the garnishment of my social security disability check around 2007. I was awarded disability in 2005. I had made an agreement with my then husband as to the terms of our divorce and he had the papers drawn up and I signed them. I wouldn’t make claim to any of our assets or business ​or spousal support, take the kids that they would remain with him and there would be no child support order requested for agreement to such terms. I had just been diagnosed mentally ill and was struggling and during this time I was still living in the house.

    So upon getting the divorce decree I was shocked to learn that the decree was very carefully planed this divorce document to protect his interest and with malice used at the most vulnerable time when I was ill to act on finalizing the divorce. It was done so with giving false place of employment. Stated he was with the armed forces when in fact he never served our country. He didn’t want to disclose that he was the owner and president of Cal-Ray Masonry inc. He greatly underestimated his wages as he made $1,000 a week plus had rental income and was doing side work for cash. He didn’t want to list assets but he did however make list of debts that were in bankruptcy we had filed.

    Because of his ruthless and cruel act of obtaining the divorce with false information using a document that is one other then the one I signed and the fact that this document clearly doesn’t even have a designated place for me to sign also demonstrates this was done with selfish intent and with malice to cause me undue hardship emotional stress financial hardship and giving me no chance to defend myself as the court date was held on the 1st instead of 31st as per my last document shows.

    Its my understanding that statue of limitations begins at time of discovery and for this it is two years.

    Before going to the court on 5-7-2014 I first went to Chris to ask for a break in support payments ex[plaining that I was living on $434 a month and needed to have some extra money to get ahead and get some clothes that I was every month barely covering my monthly expences and every month very close to becoming homeless again. He stated he would call child support enforcement and tell them to stop all payments. two months would pass and several phone calls. The last phone call he laughs and says I don’t have time to call them I don’t know what to tell you but I cant help you.

    So then I had no other option but to rely on the court and ask for some kind of relief and while in court he claims that I should get a job, and that he knows that I won the lottery and I inherited money from my Grandmother and why am I not fling tax returns, that I have a rich boy friend who can support me and he objects to any relief and wants the payment to remain as they are. Despite I have provided the court with documentation I live below poverty level and he has a good job the boys are well into there 20’s. This man had the nerve to fight for money he was awarded by knowingly willingly and with intent lied to the court to get this money and has no feelings about continuing to collect it from the mentally ill mother of his children who is desperate and fearing the loss of maybe loosing her apartment.

    I deserve to have this judgement vacated and dismissed any and all damages, charges for the crimes used to get awarded these funds and to continue them, abuse and harassment and defrauding disabled person.

    I have every right to want my day in court and make him pay for robbing me of what was also mine in assets and deceiving me and abusing me for 20 + years . Calling the cops when I would come to see the kids. He has been ruthless and very unkind cruel and heartless and influences our boys who are only now learning the truth with the documents I have the decree, house papers bankruptcy and sharing information.

    Its only fair he be accountable

    So please when writing this be just as ruthless and heartless and that his misdeeds warrant damages and punishment equal to his damage he has intentionally caused. I also want any money awarded me to be paid upon judgement as after his bragging he has it and I want it.

    The case is DR-96-94073

    Because he abused the child support enforcement agency to enforce this order there is an atlas #0002509808-00

    Every 24 months per this decree our wages and tax returns are supposed to be exchanged and up for review but of coarse I wouldn’t be aware of such because I was never to see this document.

    Because I’m mentally ill I’m greatly disturbed over this and all the tormenting I have got over the years and the abuse when diagnosed he mad my life hell and made me believe things that I now know are lies all lies and this decree is proof that what I thought on other issues he told me I was right just doubted myself because after all I’m mentally ill and that makes me vulnerable.

    Thanks for your help

    anything you thing is best to get my desired result is appreciated

    1. kim says:

      I would really like to talk to you, I have a similar situation, and I an curious how the Judge reacted to your letter. If you would not mind I would appreciate your response.
      Thank You

  5. My first marriage was actually a marriage sham. I married a business name that was used as an alias and actualy used as a business name. I found the ledger page ripped out of their accounting books. They set up trusts using misspelled names and wrong social security numbers and bought insurance as business investments, using wrong addresses and missing social security numbers, substituting EIN numbers. Assets were transferred by changing social security numbers, adding letters or subtracting letters to change trusts to shell companies. No identity of the man I married was ever presented. I was told that there was never really a marriage or divorce by this man.I never received assets, only credit for legal fees that were written off as business legal fees. The person I married I believe to have been using his dead brother’s name, so he could buy property using trusts set up by his mother, and shift business assets with business names of siblings. I’m submitting complaints to FBI, but see these actions as perfect long life identity theft scams robbing his wife and children of everything. I fell into evidence while burning mother-in-law s trash on property. I just now began to understand how the formula worked.

  6. Benjamin Moore says:

    Thank you,helpful! When you’re litigating Pro Se, it’s information like this that help with the nuances of filing, responding and make you argument succinct, especially to the Magistrate. Thanks again!

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