The meet and confer process has failed. Now you have to decide whether (1) you need to bring a Motion to Compel Further Documents because the documents are an integral part of the defense and/or prosecution of your case, or (2) wait for trial and make a motion in limine to exclude the documents categorically at trial. Two of the factors you are going to have to consider are how much time it’s going to take to prepare the motion as well as the cost to your client.
Most attorneys underestimate the time and cost in filing a Motion to Compel Further Responses.
Below is an example of how much time a SKELETON Motion to Compel Further Responses to Requests for Production of Documents would take.
MEMORANDUM OF POINTS AND AUTHORITIES: 3 – 5 hours
* Describing what the motion seeks.
B. Facts of the Case
C. Procedural History regarding the Discovery in issue
* Why these documents are important to your case.
* Why the objections are garbage.
* What happened during the meet and confer process.
E. Request for Sanctions
* Calculation of your Hourly Rate x Hours Spent on the Motion + Costs.
* Delineate what you are requesting the court to award you
SEPARATE STATEMENT OF ITEMS IN DISPUTE 1 hour for every 10 requests
A. Separate Statement of Items in Dispute. CRC, Rule 3.1345
B. Concise outline of the discovery request and each response in dispute. Cal Code Civ Proc § 2031.310(b)(3)
ATTORNEY DECLARATION TO SUPPORT OF YOUR MOTION .5
A. Authenticating each document attached as an exhibit
B. Describing why the documents are necessary for your case.
C. Delineating the meet and confer process. Describing in detail the amount of attorney time and expenses in calculating sanctions
PROPOSED ORDER .5
A. All relief you are seeking from the court including overruling of the objections and compliance dates.
B. Sanctions, including how much sanctions, against whom, whom to be paid to and when they are to be paid.
In the majority of cases, the above estimate is not realistic.
These motions can take anywhere from 15 to over 50 hours. So, before you give your estimate regarding the cost of a motion to compel further responses to your client, consider the following in your calculations:
* Locating an example of a notice to use as a template and drafting a compliant notice pursuant to CRC, Rule 3.1110. SEE Cal. Civil Discovery Practice, 4th Ed. (CEB 2019) 15.46.
MEMORANDUM OF POINTS AND AUTHORITIES
* Are the facts of the case complex enough (and important enough) that the court should be educated to understand the motion in context?
* Is there a history of discovery abuse that needs to be delineated in the procedural history?
* Legal research and argument if a proper privilege log was not served with the response.
* Legal research regarding each of the garbage objections.
* Are you challenging the assertion of a privilege? What research will be necessary to outline the boundaries of the privilege to make sure your motion is seeking non-privileged documents?
* Legal research and argument if requesting an in camera review by the court.
* Preparing a protective order for the court to put in place in order to resolve objections on the grounds of privacy, trade secret etc.
* Legal research and argument for the appointment of a discovery referee for an in camera review and/or for all further discovery disputes.
* A substantive argument regarding sanctions.
SEPARATE STATEMENT OF ITEMS IN DISPUTE
* Even if you can easily copy the request and the response this document takes a lot of time. Expect close to ½ an hour for each request. (i.e., 10 requests would equal 5 hours.)
* Each request and response needs to be specifically addressed as to why you need the documents as well as why the objections are garbage.
* If a protective order is being proposed, argue why the protective order resolves the objection(s) to that request.
* If you are going to opt for discovery outline pursuant to Cal Code Civ Proc § 2031.310(b)(3), you are going to need to get permission from the court. That process can include the need to bring an ex parte application to obtain the order.
* Tracking down and copying all the documents you need for your declaration.
* Deciding whether you need declarations and exhibits from your client, witnesses and/or your experts.
* Making sure your declaration paragraphs and exhibits are accurately reflected in your memorandum of points and authorities.
OTHER PROPOSED ORDERS
* Proposed Protective Order
* Proposed Order for the Appointment of a Discovery Referee.
HINT: Don’t forget the time and cost for reading the opposition, preparing the reply as well as traveling to and appearing in court as that could easily be an additional 10 hours.