Chapter 3A: Motions to Compel

Learning Outcomes

1. Understand:
   1. why and when to file a motion to compel;
   2. the relevant procedural rules when making or opposing a motion to compel; and
   3. the documents required when making or opposing a motion to compel.
2. Be able to:
   1. apply the relevant procedural rules when making or opposing a motion to compel; and
   2. draft the documents required when making or opposing a motion to compel.

Introduction

In the event of a discovery-related conflict, the party seeking discovery may move to compel discovery from another party under Rule 37.^[1] (See the appendix for links to each state’s rules.) However, because Rule 37 requires that parties first attempt to resolve the conflict themselves—and provides for attorney’s fees to the prevailing party—these motions should be approached with caution. Many judges prefer that the parties sort out discovery disputes on their own and may look unfavorably on parties that cannot resolve the issue without judicial intervention. Therefore, you must exercise excellent judgment in bringing such disputes to the court’s attention.

Why Move to Compel

If a party has issued a discovery request to which the opposing party has objected, the parties must then confer to attempt to resolve the dispute. Fed. R. Civ. P. 37(a)(1). If the parties are unable to resolve the dispute, Rule 37 provides a mechanism by which to bring this dispute to the court’s attention for resolution.^[2] The party seeking the discovery will need to argue that the discovery sought is relevant and proportional under Rule 26(b)(1).

When to File a Motion to Compel

The timing of a motion to compel is governed by the court’s Rule 16 scheduling order, which sets forth discovery deadlines for a particular case, rather than Rule 37 itself. Generally, a motion to compel should be made before the close of discovery, absent good cause. See, e.g., Gucci Am., Inc. v. Guess?, Inc., 790 F. Supp. 2d 136, 139-40 (S.D.N.Y. 2011). Always check local rules and standing orders to see if your jurisdiction or judge requires the motion to be filed within a certain timeframe.

Procedural Rules

Federal Rule of Civil Procedure 37(a) governs motions seeking an order compelling discovery. The federal rule includes a variety of provisions specific to different forms of discovery, as well as required disclosures. Very importantly, Rule 37 requires that parties to attempt to resolve the discovery-related conflict in good faith, without involving the court, before resorting to a motion to compel. Rule 37(a)(1) provides that:

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion 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.

Local rules may impose additional requirements. Some courts may require a letter, a letter motion,^[3] or telephone or in-person conference, either before or instead of a formal motion. In addition to local rules and standing orders, the Rule 16 scheduling order may provide information about how a judge prefers to handle discovery-related issues. See Fed. R. Civ. P. 16(b)(3)(A)(v) (providing that the court m ay “direct that before moving for an order relating to discovery, the movant must request a conference with the court”). Accordingly, you should carefully research the applicable rules and orders and develop an understanding of your judge’s preferences before involving the court.

If the discovery dispute remains unresolved, Rule 37 identifies specific motions that a party may file to compel disclosure or discovery:

1. To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.
2. To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
   1. a deponent fails to answer a question asked under Rule 30 or 31;
   2. a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
   3. a party fails to answer an interrogatory submitted under Rule 33; or
   4. a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.
3.  Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

Fed. R. Civ. P. 37(a)(3). For purposes of this rule, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).

Carefully research the rules in your jurisdiction to assess which party has the burden in a discovery-related dispute. Generally, the party moving to compel “bears the initial burden of demonstrating relevance and proportionality.” N.Y. Times Co. v. Microsoft Corp., 757 F. Supp. 3d 594, 597 (S.D.N.Y. 2024) (citation omitted). Once the requesting party has made a prima facie showing of relevance, “it is up to the responding party to justify curtailing discovery.” N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 48 (E.D.N.Y. 2018). “However, general and conclusory objections as to relevance, overbreadth, or burden are insufficient to exclude discovery of requested information. Rather, a party resisting discovery has the burden of showing specifically how, despite the broad and liberal construction afforded the federal discovery rules, [the requested discovery material] is not relevant or how each question is overly broad, burdensome or oppressive.” Id. (citation modified).

Parties must proceed carefully in bringing discovery-related disputes to the court’s attention, not only to avoid aggravating the judge, but also to avoid the imposition of attorney’s fees and costs. Rule 37(a)(5) requires the court to award “reasonable expenses,” including attorney’s fees, to the party that prevails on a motion to compel, under certain circumstances. Note also that Rule 37(b) provides for sanctions for failure to comply with a discovery-related court order.^[4]

Supporting Documents

A motion to compel should include the motion or notice of motion itself; supporting brief (memorandum of law); attorney declarations or other evidence related to the discovery sought and nature of the dispute; a certification that the parties attempted in good faith to first resolve the dispute without involving the court; and a request for attorney’s fees. For a review of how to organize and write a persuasive memorandum of law, see Nan Haynes, Legal Writing Handbook for Clinical Students (CALI eLangdell Press 2023).

Since requirements for discovery-related filings vary significantly among jurisdictions, carefully check local rules and standing orders to determine the content and form of the documents required for this kind of motion. You can ask your supervisor or colleague for a sample filing in the same jurisdiction, to give you an idea what these documents should look like conforming to local standards.

Checklist

To Determine Whether to Move to Compel in Federal Court

✓     You have issued a proper discovery request (i.e., that is timely, specific, relevant, and proportional to the needs of the case).

✓     The other party has opposed the request.

✓    The parties have conferred about the issue in good faith, or you have attempted to do so with opposing counsel, as required by Rule 37(a)(1).

✓     You can make a well-founded argument that the discovery sought is relevant to any party’s claim or defense and proportional to the needs of the case per Rule 26(b)(1).

✓     You have made a strategic decision that the discovery sought is worth seeking judicial intervention and risking the imposition of attorney’s fees.

 

When Moving to Compel in Federal Court

✓     Check the local rules, judicial standing orders, and Rule 16 scheduling order to identify requirements or preferences for bringing the dispute to the court’s attention. For example, does the court require that you first request a conference with the court before filing a motion? Does the court require a letter motion or formal motion?

✓     In addition to a motion and brief, attach supporting documents as necessary, such as affidavits/declarations/affirmations (including about the good faith effort to confer with opposing counsel) with the pertinent discovery request and other related materials.

Sample Documents

The following sample is a letter motion (and response), rather than a full formal brief, as required by the local rules in the Eastern District of New York. In addition to illustrating what a letter motion might look like, this sample demonstrates the importance of checking local rules, to ensure that your submission complies with all applicable procedural rules.

Sample Document 1

[Firm letterhead]

Hon. Lucy Grimsby, U.S.D.J.^[5]
United States District Court for the Eastern District of New York
225 Cadman Plaza E
Brooklyn, NY 11201

[Date]

Re:  Alexander Reynolds v. Elizabeth Seabury, No. 25-cv-103

Dear Judge Grimsby:

I write regarding a discovery issue that has arisen in this matter, Reynolds v. Seabury, No. 25-cv-103. Pursuant to Federal Rule of Civil Procedure 37(a)(1), I certify^[6] that the parties attempted in good faith to settle this dispute before bringing this matter to the Court’s attention. Specifically, I called [Lawyer Name], counsel for defendant, on [date], to discuss the matter, and I sent a follow-up email on [date]. I raised the arguments contained within this letter, but counsel still declined to supply the requested discovery material.

As the Court is aware, plaintiff Alexander Reynolds has filed a copyright infringement lawsuit against defendant Elizabeth Seabury, related to Seabury’s use of Reynolds’ copyrighted photograph in her mural design. Seabury has raised the affirmative defense of fair use, 17 U.S.C. § 107.

Per the Court’s scheduling order, the parties are in the process of conducting discovery. Reynolds has propounded written discovery, including interrogatories and requests for production of documents. Seabury has objected to certain of these requests, including portions of Interrogatory #13 and Request for Production of Documents #6, reproduced^[7] below:

Interrogatory #13:  Identify any profits directly or indirectly made from the commission of the “Park Slope mural” and the “Brooklyn Heights mural.”

Request for Production of Documents #6:  All documents that relate to the answer supplied in Interrogatory #13.

Both queries relate to profits that Seabury has made from the mural that featured Reynolds’ photograph (the “Park Slope mural”) as well as a second mural (the “Brooklyn Heights mural”), which did not feature Reynolds’ photo but was apparently inspired by it. However, Seabury has objected to the Brooklyn Heights mural portions of these discovery requests on the grounds that they are “overly broad and not relevant to the claims or defenses at issue in this litigation.” Because Reynolds is entitled to this relevant discovery material, he requests a discovery conference to resolve this dispute, so that Seabury will respond to these reasonable discovery requests.

The federal rules provide that parties may undertake discovery^[8] into “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “Rule 26(b)(1) recognizes that information is discoverable . . . if it is relevant to any party’s claim or defense and is proportional to the needs of the case.” Sabhnani v. Mirage Brands, LLC, No. 22-cv-00936, 2023 WL 1451563, at *1 (E.D.N.Y. Feb. 1, 2023) (internal quotation marks and citation omitted). Rule 26 makes clear that such evidence need not be admissible at trial in order to be discoverable. Fed. R. Civ. P. 26(b)(1).

These requests are relevant^[9] to Reynolds’ argument against Seabury’s fair use defense. The fair use statute outlines four factors for the Court to consider in determining whether a defendant has fairly used the plaintiff’s copyrighted material, including “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Seabury does not dispute that she utilized Reynolds’ photograph in her Park Slope mural, and she has not objected to this portion of the discovery requests. However, these queries are also relevant—and permissible under the broad discovery rules—because the Brooklyn Heights mural is quite similar in nature to the Park Slope mural.

Specifically, Reynolds’ photograph features two children posed peacefully in an apple orchard, symbolizing childhood innocence. Seabury’s Park Slope mural features portions of this photograph, but now in an apocalyptic setting designed to draw viewers’ attention to climate change. Just months after creating the Park Slope mural, Seabury also completed the Brooklyn Heights mural, which does not directly incorporate Reynolds’ photograph but features different children picking strawberries, with similar features as the Park Slope mural.

Reynolds argues, under the relevant portion of the fair use test, that Seabury’s murals have usurped the market for his photograph (and thus that Seabury’s Park Slope mural is not fair use and instead copyright infringement). To develop this argument, Reynolds seeks access to discovery material, including interrogatory answers and document production, about Seabury’s mural-related profits. Given that only two murals are at issue, these requests are not unduly burdensome. Nor are they overly broad, since the requests relate directly to one of the statutory factors. Indeed, these requests are directly relevant to Seabury’s fair use defense.

Accordingly, plaintiff Alexander Reynolds respectfully requests that the Court schedule a discovery conference to resolve this dispute and ultimately enter an Order directing defendant Elizabeth Seabury to fully answer Interrogatory #13 and supply all related documents as requested in Request for Production of Documents #6, as well as an award of reasonable attorney’s fees and costs under Federal Rule of Civil Procedure 37(a)(5).

Respectfully,

Attorney Signature
Attorney Name
Attorney for Plaintiff Alexander Reynolds

cc:  [Counsel for defendant]

Sample Document 2

[Firm letterhead]

Hon. Lucy Grimsby, U.S.D.J.
United States District Court for the Eastern District of New York
225 Cadman Plaza E
Brooklyn, NY 11201

[Date]

Re:  Alexander Reynolds v. Elizabeth Seabury, No. 25-cv-103

Dear Judge Grimsby:

Pursuant to Local Rule 37.2, I write in response to the plaintiff’s letter^[10] dated [X], in the matter of Reynolds v. Seabury, No. 25-cv-103. Defendant Elizabeth Seabury maintains that portions of the discovery material sought in Plaintiff Alexander Reynolds’ Interrogatory #13 and Request for Production of Documents #6 are completely irrelevant to the matter at hand, and thus her objections should be sustained.

As Reynolds’ counsel admits, portions of these requests relate to one of Seabury’s artistic creations (the “Brooklyn Heights mural”) that is entirely unrelated to the mural at issue in this litigation (the “Park Slope” mural). Reynolds does not claim that Seabury used his photograph in the Brooklyn Heights mural, nor that this mural could have somehow infringed on his copyrighted photo. Rather, Reynolds maintains that Seabury’s second mural includes merely “similar features” as the first. Such a request does not satisfy the relevance standard in Federal Rule of Civil Procedure 26(b)(1) with respect to Reynolds’ copyright infringement claim or Seabury’s fair use defense. Instead, the request is completely irrelevant to this particular claim and defense.

Reynolds cites no legal authority permitting such a fishing expedition.^[11] Indeed, he cannot, because profits related to the second mural project have absolutely no bearing on whether Seabury’s first mural infringed on Reynolds’ copyright or usurped the market for Reynolds’ photograph under the statutory fair use factors. Where discovery material is “wholly unrelated” to the complaint’s allegations, “their relevance has been found too tenuous to allow discovery.” Barrett v. City of New York, 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (internal quotation marks and citation omitted). As an artist at the beginning of her career in a competitive market, Seabury should not be required to share confidential profits-related information or documents about an art project wholly unrelated to the matter being litigated.

I can confirm that I spoke with [Lawyer Name], counsel for Reynolds, on [date] in an effort to reach a good-faith resolution of this matter, and that we exchanged further emails about the subject on [date], but the parties were unable to come to agreement.^[12]

For these reasons, following the Court’s discovery conference, defendant Elizabeth Seabury respectfully requests that the Court reject plaintiff Alexander Reynolds’ irrelevant, unreasonable, and overbroad discovery requests and allow Seabury’s properly formed objections to stand. Seabury also requests that the Court award reasonable attorney’s fees and costs under Federal Rule of Civil Procedure 37(a)(5) in defending against this impermissible discovery request.

Respectfully,

Attorney Signature
Attorney Name
Attorney for Defendant Elizabeth Seabury

cc:  [Counsel for plaintiff]

Coming Up Next

You just read about how to proceed when a party opposes a proper request for discovery. In the next chapter, you will read about how to proceed when your opponent demands discovery in an effort to annoy, embarrass, oppress, or unduly burden your client.