What is Best? Avoid What Others Have Done Divorce can be one of the most stressful things you might ever have to endure in your lifetime. Blog July What is a Motion to Compel? July 28, Scope and Limitations of a Motion to Compel A motion to compel asks the presiding probate and family judge to order one party to provide the opposing side with evidence related to the divorce proceedings. Such evidence may include: Deposition testimony Requests for admissions of undisputed facts Tax returns, pay stubs, bank statements, and other financial information Emails, text messages, photographs, and videos Personal letters Title documents to vehicles and homes Sworn responses to interrogatories Time and opportunity to inspect certain documents or property It is important to note that you must obtain evidence through standard discovery methods, such as letters between attorneys, formal documents, or personal requests, before filing the motion to compel.
Reasons for Requesting Judicial Intervention during Divorce Proceedings When spouses realize the requested evidence might harm their personal or financial interests, they often make excuses for not providing it. Get Help with Filing a Motion to Compel in a Divorce Case Divorce litigation is already difficult enough without your ex trying to delay the process or refusing to be transparent within their financial documents.
Categories Divorce. However, Code of Civil Procedure section Many courts will have local rules with additional requirements before a party is allowed to file a motion to compel. For example, the Los Angeles Superior Court requires the parties engage in an Informal Discovery Conference before filing a motion to compel. These local rules and requirements change often. It is good practice to review local rules before filing a motion to compel.
Many times discovery responses are withheld due to a privilege. Rarely do discovery responses identify or describe the item or items withheld due to a privilege. This leaves little opportunity to determine if there are any items being withheld, and whether an item is in fact protected from disclosure due to a privilege, or if the privilege was waived in some way.
Code of Civil Procedure section A privilege log must sufficiently specify each document being withheld so it can be determined whether or not it is in fact privileged. Wellpoint Health Networks, Inc. Once the identity and description of the withheld items are known, a determination whether to compel the items can be made. As lawyers we get angry when documents are not turned over even though we are entitled to them and we know they exist. The present provision of Rule 37 a that the court shall require payment if it finds that the defeated party acted without "substantial justification" may appear adequate, but in fact it has been little used.
Only a handful of reported cases include an award of expenses, and the Columbia Survey found that in only one instance out of about 50 motions decided under Rule 37 a did the court award expenses.
It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary. The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust—as where the prevailing party also acted unjustifiably.
The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. The present provision that expenses may be imposed upon either the party or his attorney or both is unchanged.
But it is not contemplated that expenses will be imposed upon the attorney merely because the party is indigent. Subdivision b. This subdivision deals with sanctions for failure to comply with a court order. The present captions for subsections 1 and 2 entitled, "Contempt" and "Other Consequences," respectively, are confusing. One of the consequences listed in 2 is the arrest of the party, representing the exercise of the contempt power. The contents of the subsections show that the first authorizes the sanction of contempt and no other by the court in which the deposition is taken, whereas the second subsection authorizes a variety of sanctions, including contempt, which may be imposed by the court in which the action is pending.
The captions of the subsections are changed to deflect their contents. The scope of Rule 37 b 2 is broadened by extending it to include any order "to provide or permit discovery," including orders issued under Rules 37 a and Various rules authorize orders for discovery— e. Rule 37 d. Rule 37 b 2 should provide comprehensively for enforcement of all these orders. Societe Internationale v. On the other hand, the reference to Rule 34 is deleted to conform to the changed procedure in that rule.
A new subsection E provides that sanctions which have been available against a party for failure to comply with an order under Rule 35 a to submit to examination will now be available against him for his failure to comply with a Rule 35 a order to produce a third person for examination, unless he shows that he is unable to produce the person.
In this context, "unable" means in effect "unable in good faith. Subdivision b 2 is amplified to provide for payment of reasonable expenses caused by the failure to obey the order. Although Rules 37 b 2 and 37 d have been silent as to award of expenses, courts have nevertheless ordered them on occasion. Arctic Fur Cap Corp.
Warner Bros. Picture, Inc. The provision places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust. Allocating the burden in this way conforms to the changed provisions as to expenses in Rule 37 a , and is particularly appropriate when a court order is disobeyed.
An added reference to directors of a party is similar to a change made in subdivision d and is explained in the note to that subdivision. The added reference to persons designated by a party under Rules 30 b 6 or 31 a to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization.
Subdivision c. Rule 37 c provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either 1 and admission, or 2 a sworn and specific denial, or 3 a sworn statement "setting forth in detail the reasons why he cannot truthfully admit or deny. Instead, Rule 37 c is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial.
Rule 37 c , as now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37 c should deter all unjustified failures to admit.
This omission in the rule has caused confused and diverse treatment in the courts. One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37 c may apply. Bertha Bldg. National Theatres Corp.
Another has held that the party should be treated as having admitted the request. Heng Hsin Co. Rules Serv. Still another has ordered a new response, without indicating what the outcome should be if the new response were inadequate.
United States Plywood Corp. Hudson Lumber Co. The amendment eliminates this defect in Rule 37 c by bringing within its scope all failures to admit. Additional provisions in Rule 37 c protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36 a or if the party failing to admit had reasonable ground to believe that he might prevail on the matter.
The latter provision emphasizes that the true test under Rule 37 c is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail. Subdivision d. The scope of subdivision d is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule Two related changes are made in subdivision d : the permissible sanctions are broadened to include such orders "as are just"; and the requirement that the failure to appear or respond be "willful" is eliminated.
Although Rule 37 d in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth. Stolow , F. Birrell , F. The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed. The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be "willful. Many courts have imposed sanctions without referring to willfulness.
Schneider Transportation Co. Kentworth Corp. In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37 d. If default is caused by counsel's ignorance of Federal practice, cf. Ohio , or by his preoccupation with another aspect of the case, cf.
Maurer-Neuer, Inc. United Packinghouse Workers , 26 F. Thus, the scheme conforms to Rule 37 b as construed by the Supreme Court in Societe Internationale v. A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable.
If he desires not to appear or not to respond, he must apply for a protective order. The cases are divided on whether a protective order must be sought. Compare Collins v. Wayland , F. El Paso Natural Gas Co. Stone , 15 F. Kulukundis , 21 F. True Temper Corp. D N. Ohio Compare also Rosenberg, supra , 58 Col.
The party from whom discovery is sought is afforded, through Rule 26 c , a fair and effective procedure whereby he can challenge the request made. At the same time, the total non-compliance with which Rule 37 d is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process.
The failure of an officer or managing agent of a party to make discovery as required by present Rule 37 d is treated as the failure of the party.
The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other. Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v. General Motors Corp.
That a director's interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26 d 2 , transferred to 32 a 2 deposition of director of party may be used at trial by an adverse party for any purpose and of Rule 43 b director of party may be treated at trial as a hostile witness on direct examination by any adverse party.
Moreover, in those rare instances when a corporation is unable through good faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions. Subdivision e. The change in the caption conforms to the language of 28 U.
Subdivision f. Until recently, costs of a civil action could be awarded against the United States only when expressly provided by Act of Congress, and such provision was rarely made. Then, I filed a motion to compel, the parties entered into a consent court order requiring them to fully answer discovery within another 20 days. However, the defendants ignored that order too even though they consented to it. Meanwhile, between waiting for responses, being courteous and giving more time, waiting to have our motion to compel scheduled, and so on, over a year had passed since the original answers to our discovery requests were due.
Instead of fully complying with discovery, including basic requests for documents such as business licenses and tax returns, the defendants continued to ignore two court orders and gave evasive and incomplete responses.
Then, I took the depositions of these two defendants. I fully expected that the next excuse I heard was that their dog ate their tax returns on the way to the deposition. Instead, both of these defendants ultimately plead to the 5th amendment and refused to answer any more questions about where documents, such as their business licenses, might be.
Because of their shenanigans, I filed a motion to have the court hold these defendants in contempt of court a Rule to Show Cause that was decided by the court nearly 2 years since these parties were supposed to answer discovery. So, what can be done to avoid sanctions for discovery abuse, other than the obvious which is to comply with discovery requests in a timely manner?
Here are a few of my suggestions for both lawyers and their clients:. The Consequences of Playing Games in Discovery. Interrogatories — Interrogatories are written questions that are sent by one party to another. Generally speaking, the party who receives these questions has 30 days to answer them. In addition to these standard interrogatories, you are limited to fifty 50 more questions unless you have a court order permitting more.
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