Know When to Withdraw a Motion to Compel

A Plaintiff was unsuccessful in a motion for the Defendants to pay her fees in opposing the Defendant’s motion to compel. The interesting twist in this case is recognizing the importance of informal discovery and alternative means to find relevant information. Gade v. State Farm Mut. Auto. Ins. Co., No. 5:14-cv-00048, 2016 U.S. Dist. LEXIS 73049, at *1 (D. Vt. June 6, 2016).


Part of the discovery dispute was over the Plaintiff’s expert files. The Defendant requested the expert produce his files in Excel format. The Plaintiff refused, because producing the Excel files would disclose the expert’s proprietary source code information. Gade, at *7. The Plaintiff instead produced a supplemental expert report. Id.

Federal Rule of Civil Procedure Rule 34 is now a very old friend when it comes to the form of production. A requesting party may state the form of production in their request for production. Fed. R. Civ. P. 34(b)(1)(C). Moreover, a requesting party can specifically request metadata (ignoring the fact that native files will have metadata, unless the file has had metadata scrubbed, which raises overlooked destruction of evidence issues if a native file did not have associated metadata). Gade, at *6-7.

The Defendant realized that after the review of the supplemental expert report that they had “sufficient information to assess the basis and reasons” for the expert’s opinions. Gade, at *7. The Defendants also could assess the expert’s facts and data used to reach his opinions. Id. As such, the Defendant withdrew their motion to compel.

Bow Tie Thoughts

There are attorneys who love to fight. Any dispute will do, real or imagined. Then there are the lawyers who are not afraid to fight, but know when is the right time to throw down with opposing counsel. The attorneys for the Defendant in this case knew they had a legitimate dispute, but realized they had the information they needed to move the case forward from the opposing expert. There was no reason to pursue a motion to compel when they had the information they needed to assess the Plaintiff’s expert opinion. Job well done to them for their self-awareness.