Enforcing Your Rights in Discovery

Keith DunnaganToday, we continue with our series on litigation and we look at how to enforce discovery rights. Sometimes the opposing party just won’t cooperate and provide responses that they are legally obligated to provide. When that happens you have to take action to require they provide the information.

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Enforcing Your Rights in Discovery
By Robert J. Enos, Esq.

In part three of our series on civil litigation we covered various types of discovery available including written and testimonial. Often however, the party against whom a particular discovery method has been deployed refuses to comply with a discovery request or provides incomplete or evasive responses. If confronted with such obstructionist legal tactics the method used to enforce your discovery rights is through the following legal tools: 1) Motion to compel attendance at deposition; 2) Motion to compel answers at deposition; 3) Motion to compel answers to interrogatories; 4) Motion to compel further responses to discovery: 5) Motion to compel production of documents; 6) Motion to deem matters admitted; and 7) Motion to compel further answers to request for admissions. In the event the party propounding discovery has done so improperly, then the appropriate remedy is a motion for a protective order.

Motions to Compel: “Motions to compel” are the tool used to force an opposing party to answer a question in deposition, answer an interrogatory, or produce a certain document or group of documents. Except in a few limited circumstances, motions to compel or limit discovery must include a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of the issues presented by the motion.

In many instances when a motion to compel is sought, the moving party asks for one or all of the following types of sanctions: Monetary (attorney fees and costs), issue sanctions (excluding a cause of action of damage claim) and terminating sanctions (the striking of the complaint or answer). The order regarding sanctions can be awarded either against the party receiving the motion to compel or the one filing the motion. If the motion to compel is denied, the court may order the moving party to pay the responding party’s expenses and fees incurred in resisting the motion. In either case, the monetary sanction “shall” be imposed unless the court finds the party subject to the sanction acted with “substantial justification” or that other circumstances make imposition of the sanction “unjust.”

For deficient responses (objections or evasive answers), a motion to compel further responses must be filed within 45 days after service of the initial responses or supplemental responses. If service of the discovery responses were by mail, then the 45-day deadline is extended by 5 additional days.

If you are the party who is responding to discovery, but the discovery sought is subject to privacy rights or so outside the realm of relevancy as to be harassing, then the remedy is to seek a protective order. A protective order is designed to control burdensome, unreasonable, or oppressive discovery requests. As with motions to compel, a motion for protective order must be accompanied by a declaration showing that the moving party made a reasonable and good faith attempt to resolve the issues outside of court.

The party whose privacy is involved is presumptively entitled to a protective order limiting disclosure of the information to purposes and persons related to the litigation and barring its use and dissemination for purposes not related to a fair resolution of the action. The statutes governing each of the various discovery procedures also authorize protective orders limiting such procedures as justice requires to protect any party or person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented clients in hundreds of lawsuits and discovery is a critical component to success in litigation. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com or Robert at rjenos@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.