The Motion to Compel: Think Tactically & Keep it Simple

If you practice commercial litigation, it’s likely that one of the first motions you’ll argue is a motion to compel.

Knowing how to effectively bring and defend a motion to compel is important because civil litigation can turn on which party bests its opponent in discovery disputes.

So how can lawyers successfully handle motions to compel? It’s easy—think tactically and keep it simple.

Judges Hate Discovery Disputes

When it comes to motions to compel, lawyers must accept three truisms: Judges are busy—and often impatient—people. Judges hate discovery disputes. And what judges hate even more than discovery disputes is having to settle discovery disputes.

It doesn’t matter whether you’re in state court—where the district-court judges usually decide discovery disputes—or in federal court—where Article III judges fob off discovery matters to their magistrates—judges will do almost anything to avoid becoming immersed in discovery squabbles.

So given these truisms, lawyers must think tactically before bringing a motion to compel. Lawyers considering a motion to compel must weigh the cost of irritating the judge by elevating the discovery dispute with the reward of potentially getting the discovery they need to prove their claims or defenses.

If, conversely, a lawyer faces the threat of a motion to compel, he must consider what will happen if he loses the motion and is ordered to produce more discovery than he would have had to produce if he would have initially produced enough discovery to avoid the motion.

Meet and Confer in Good Faith, But Don’t Get Played

Judges’ preference for avoiding discovery disputes is so strong that the state and federal rules of civil procedure generally require parties to meet and confer before bringing a motion to compel. The meet-and-confer requirements vary depending on the court, but, generally speaking, they all seek to discourage motions to compel.

In federal court, Federal Rule of Civil Procedure 37 requires that a motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”

But there’s no bright-line rule for what constitutes a good-faith attempt to meet and confer.

The discovery process in general, and the meet-and-confer process in particular, is a game—a kabuki dance between the non-producing party and the party requesting the discovery. In this discovery game playing, the non-producing party will do its best to delay producing the discovery or not produce the discovery at all.

For example, the non-producing party might initially agree to produce the discovery, and then, at the last minute, renege on that promise. Or the non-producing party might agree to produce the discovery, but then only produce some of it and claim that the meet-and-confer process must begin anew. Or the non-producing party might attempt to delay the meet-and-confer process itself by not agreeing to meet and confer until its attorneys’ schedules permit.

New lawyers are particularly susceptible to falling for these tactics of obfuscation and delay, especially if opposing counsel is experienced in using these tactics. But all lawyers must recognize the game for what it is.

If the non-producing party is violating its discovery obligations, or its obligations to meet and confer, or both, the party requesting the discovery should put an end to the game. I’ve never seen a judge deny a motion to compel because the parties failed to adequately meet and confer, much less where one party is using these tactics to obstruct the discovery process.

After all, judges know how the game is played too.

Omit the Details, But Know The Case Inside Out

Legal briefs supporting motions to compel should be as concise as possible. A motion to compel isn’t a motion for summary judgment, and the judge doesn’t need to know the minute details of the case to decide the motion. In most cases, if the facts section in a brief is more than 2–3 pages long, it needs to be cut.

But being concise in a brief doesn’t mean that lawyers preparing to argue a motion to compel shouldn’t learn the case inside out. If a new lawyer is pinch hitting for a partner on the motion (because the partner is too busy or the client can’t pay for the partner’s time to brief and argue it) the new lawyer must get up to speed on the entire case to adequately prepare for oral argument.

There’s simply no way to predict what minor factual or legal issue might come up at the hearing. And no new lawyer wants to have to explain to the supervising partner why he lost the motion by not taking the time to learn the case before oral argument.

Limit Citations to Legal Authority

Despite the importance lawyers might place on a motion to compel in a particular case, the fact is it’s probably the most routine motion decided by judges. So for the ordinary motion to compel there’s no reason to include voluminous legal authority to support basic legal propositions.

A federal magistrate judge, for example, doesn’t need three cases to understand that Federal Rule of Civil Procedure 26(b) permits a party to discover “any nonprivileged matter that is relevant to any party’s claim or defense” or information that “appears reasonably calculated to lead to the discovery of admissible evidence.” A citation to the rule usually suffices to support basic legal propositions.

Besides not burdening the judge with unnecessary or redundant legal authority, lawyers should avoid citing cases from other jurisdictions in motions to compel. There are exceptions to this rule, but in most cases judges don’t care a whit about how another judge in another jurisdiction has ruled on a previous motion to compel.

If there’s a case from another jurisdiction that’s particularly relevant to the motion—because, for example, the case involves unique facts or a specialized area of law—lawyers shouldn’t hesitate to cite it. But in general, citing unnecessary or redundant legal authority only wastes printer ink.

Eschew Tu Quoque and Ad Hominem

Discovery disputes can get acrimonious. When things get testy between litigants, their lawyers too seem to default into the playground tactic of personally attacking their opponent, while at the same time protesting that they’re on the side of the angels.

Personal attacks in discovery disputes often take the form of tu quoque and ad hominem fallacies. The tu quoque fallacy, translated from Latin, means you’re another, and goes something like this: ”My client shouldn’t have to produce the discovery because the other party hasn’t produced its discovery.”

The ad hominem fallacy, translated from Latin, means personal attack, and often takes the form of: ”My client shouldn’t have to produce the discovery because the other party lies, cheats, and steals, and, for that matter, its lawyers are dishonest, too.”

Because judges have heard these arguments many times before, they treat tu quoque and ad hominem fallacies as distractions. So when lawyers see their opponents trotting out these fallacies, they should take advantage of them by pointing out to the judge that they’re an attempt to distract from the issues presented in the motion.

Don’t Sweat the Minor Issues

When I practiced commercial litigation in Philadelphia, I had to argue motions to compel in the discovery court of the Philadelphia Court of Common Pleas.

What was unique about discovery court was that lawyers who wanted to move to compel discovery didn’t file their motion papers before the hearing. Instead, they had to bring their motion papers to discovery court on the day of the hearing.

When the clerk called their case, attorneys had to physically hand their motion papers to the discovery judge and begin to argue the motion. Because the judge knew nothing about the case, and also hadn’t read the motion papers in advance, attorneys had to quickly educate the judge and make their arguments concisely and forcefully.

What discovery court taught me is that lawyers win motions to compel by selecting, briefing, and arguing their three or four most important discovery issues. Above all else, what judges deciding motions to compel want to do is understand the principal disputed issues and decide those issues in a fair and expedited manner.

So lawyers shouldn’t sweat the small stuff on a motion to compel. They probably won’t get everything they want anyway.

Motions to Compel Can Prepare the Battlefield

The military uses the term “preparing the battlefield” to describe the limited actions an army can use to prepare for a broader military engagement in the future. Smart lawyers, too, can use motions to compel to prepare the battlefield for the larger litigation war.

Lawyers can tactically (and ethically) use motions to compel to achieve a variety of litigation ends.

A motion to compel, for example, can create an impression with the judge that the opposing party is sloppy or unethical. A motion to compel can influence the judge’s view of the facts in advance of a motion for summary judgment. A motion to compel can keep an opposing party off balance and distracted, and force it to deplete its resources defending the motion. The possibilities for tactically using motions to compel to achieve other litigation objectives really are limitless depending on the type of case.

Granted, these tactics can backfire. And to be clear, I’m not advocating that lawyers violate their ethical obligations by filing motions to compel for an improper purpose. But attorneys can be faithful to their ethical obligations and still be smart about using motions to compel to prepare for battles yet to come.

(photo: http://www.flickr.com/photos/pleeker/2523623188/)

The Motion to Compel: Think Tactically & Keep it Simple is a post from the law firm marketing blog, Lawyerist.com

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