Be Specific with Motions to Compel and Relief Sought

Litigation can be a stressful experience. Attorneys are justifiably upset when they make what they think are effective discovery requests and the response seems lacking. The following case has important lessons on being very specific with a motion to compel and the remedy sought.

In a collective action over whether employees were misclassified as exempt, the Plaintiff brought a motion for 1) an in-person conference with the Court on the Defendants’ collection, search, and production of email; and 2) a motion to compel for regional and corporate emails. Kellgren v. Petco Animal Supplies, Inc., 2017 U.S. Dist. LEXIS 35773 (S.D. Cal. March 10, 2017).

There were two big problems with the Plaintiff’s motion to compel: 1) they did not identify the specific discovery requests at issue in the dispute; and 2) they did not state the relief they sought from the Court. Kellgren, at *9-10.

The court explained that the Chambers’ Rules require a joint motion for the resolution of a discovery dispute must state the following:

  1. The exactwording of the discovery request;
  2. The exact response to the request by the responding party;
  3. A statement by the propounding party and any points and authorities as to why a further response should be compelled; and,
  4. A precise statement by the responding party and any points and authorities as to the bases for all objections and/or claims of privilege.

Kellgren, at *9-10, citing Chambers’ Rules, § V.D.

Magistrate Judge Karen Crawford explained that the Plaintiffs only made general statements about the Defendants collection, search, and production of ESI. Kellgren, at *10. Moreover, the Plaintiffs did not address the relevant search terms, job titles, or custodians, they thought would be appropriate for each specific discovery request. Kellgren, at *11.

The Court cited to Federal Rule of Civil Procedure Rule 7(b)(1), which requires a party to state the grounds for court order and remedy sought. Kellgren, at *12. Not many other eDiscovery cases have referenced this rule, but it makes a lot of sense that if a party is bringing a motion to compel, they state their authority to do so and what relief they are seeking.

The Court further explained the parties had not had any meaningful meet and confers to their discovery disputes. Kellgren, at *13. The Court ultimately denied the motion to compel for being untimely and for failing to meet and confer over the dispute. Kellgren, at *14.

Bow Tie Thoughts

The Federal Rules of Civil Procedure are the roadmap for conducting discovery. Being able to identify discovery requests with inadequate responses is a required element of a motion to compel. Yes, citing a full request and response is time consuming, but that is the rule. The other big lesson: have a meaningful meet and confer if there is a discovery dispute. Take the time to engage with the other side or at least document their unwillingness to participate.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.