What is a Motion to Compel?

When the opposing party fails to timely or fully answer discovery, the remedy is through a motion to compel. The rules pertaining to such motions are contained in South Carolina Rule of Civil Procedure 37.

There are two reasons to file motions to compel. One reason is that a party simply refuses or fails to provide any answers within the required time period. The other reason is when a party provides evasive or incomplete answers–which per Rule 37(a)(3), SCRPC–are treated as failures to answer, or raises objections to answering discovery that the issuing party does not believe are valid.

Where a party has simply failed to provide timely responses, the court will almost always require that party to provide responses. Where there are disputes over whether answers are incomplete or evasive, or whether objections to responding are valid, the court will consider the response or objection. If the court determines the objection is not valid, or the response is evasive or incomplete, it will then order the responding party to supplement the response. If the court determines that the response is complete or the objection is valid, it will not require that party to further respond.

An order compelling discovery responses is powerful. First of all, the failure of a party to comply with an order compelling can subject that party to contempt sanctions. Moreover, Rule 37(b)(2) lists a number of sanctions for failing to answer discovery. While these sanctions are rarely applied at an initial motion to compel hearing, they are more likely to be applied if a party still fails to comply with an order compelling responses. Those sanctions are:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply show that he is unable to produce such person for examination.

With every motion to compel, a party may further seek fees for being required to file such a motion to obtain proper discovery responses. Rule 37(a)(4) speaks of fees generally being required for a successful motion to compel:

If the motion 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. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

In practice, family court judges will sometimes hold fees in abeyance until trial even if it is clear the other party would not respond to discovery until and unless the motion to compel was filed.

While a party can be obstinate in responding to discovery, the family court has tools to end such obstinance. I have seen family court judges prevent parties from presenting witnesses or evidence, or deem contested facts as established, when a party has repeatedly refused to follow discovery orders. In one on my cases a family court judge incarcerated the opposing party until he fully answered discovery.