Practice Hints for Motions to Compel

When starting discovery:

•	Make the requests clear and narrow

•	Start early enough to allow time to resolve motion to compel before discovery deadline

•	Avoid the dialectic dilemma - you think you know what you want and what the opponent has, you ask for a broad range, the opposition understands the request as overbroad and perhaps cannot read what you really want in what you asked

When responding to discovery:

•	Identify documents that are responsive

•	Make an adequate privilege review and log

When negotiating extensions for discovery answers:

•	Stipulate to extend time for answers not for objections

•	Stipulate to shorten times for briefing any necessary motions

Make the 'meet and confer' meaningful:

•	Get out of the "blame-shifting" mentality of litigation

•	Meet in person - meet at the net, don't lob grenades from backcourt

•	Allow enough time to really discuss and resolve the problem

•	Collaborate on the appendix1 for the motion - this process may resolve disputes

•	Can you stipulate as to the issue?

Motion, Memorandum, Declaration, Appendix

•	Draft assuming you will not argue the motion - don't expect to be clear later

•	Clearly state the relief desired

Be realistic - dismissal/judgment is unlikely unless conduct is egregious

•	Don't neglect to propose a narrowed request

•	Get courtesy copies to the judge - even if e-filing

•	If you need to expedite, ask opposing counsel and if counsel does not agree, ask the court

•	Prepare an appendix and submit it in WordPerfect format

•	Notify chambers if briefing is extended by agreement

•	If the motion is resolved, withdraw it of record

Arguments not to make:

•	They did it first

•	They did it worse

•	Its bad – because they want it

Expenses - Attorney's Fees

•	Based on contemporaneously created time records, with detail

•	Justify rates in market

•	Only include expenses incurred in the motion, not in discovery

The Spectrum of Motions to Compel

Worst Cases	Most Cases	Minor Cases
Utter Failure	Partial Response

Failure to sign

Inadequate privilege log

Failure to specify documents

Disputes about time frame and detail	Dissatisfaction with answer

Requests construed to create dispute/burden

David Nuffer July 2005