What is a “motion to compel”?

A motion to compel is a request to a court to order either a party to a court case or a third person to do something.  A party who fails to obey a motion to compel may face court sanctions, including penalties for contempt of court.

Motions to compel are frequently used to settle discovery disputes, especially when one party refuses to turn over its answers to interrogatories, documents or other items asked for in a request for production of documents, or its responses to a request for admissions. A motion to compel must include a promise by the party or attorney filing it that he or she made a good-faith attempt to communicate with the other party in order to resolve the problem without having to ask the court to intervene.

In some jurisdictions, a motion to compel may be filed as a routine matter whenever a party misses its deadline to turn in its responses to interrogatories, requests for admissions, or other discovery responses.  Often, however, a party’s attorney who realizes she is going to miss a discovery deadline due to other obligations will contact the opposing party’s attorney privately to work out an extension of the deadline.  While the attorney awaiting the responses still has a legal right to file a motion to compel in these instances, many will accept an extension of the deadline worked out in advance if the opposing attorney is missing the deadline for a good-faith reason.

A motion to compel may also be filed when a third party or its attorney refuses to comply with a subpoena to give testimony in a deposition or to turn over documents or other items related to the case.  Regardless of the reason for the refusal, the court may grant a motion to compel if the third party persists in refusing to give testimony or comply with a subpoena duces tecum.

Like a motion to compel used in discovery, a motion to compel used to gather evidence or testimony from a third party must contain a guarantee that the party filing it made a good-faith attempt to resolve the issue before asking the court to step in.  Also, like a party to the case, a third party that refuses to comply with a motion to compel may face jail time, fines, or other penalties for contempt of court.

Under the Federal Rules of Procedure and in many state court rules of procedure, the party that files a motion to compel  must, before filing the motion with the court, give the party they’re filing the motion against notice that a motion to compel is about to be filed against them.  The notice gives the other party a last chance to correct the problem by handing over the required discovery or other items or otherwise talking to the party about to file, in order to resolve the issue without needing the court to intervene.

The federal rule that governs motions to compel is fairly short.  Some states, however, have very detailed rules governing motions to compel, including detailed lists of the information that must be included in the motion to compel.  The rules may also govern when a motion to compel cannot be used, in order to curb the impulses of attorneys in a case to use them for tactical advantage, rather than out of a genuine interest to move the case forward.

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