(Pretrial) Motion to Compel Discovery – force the opponent to procure all evidence they plan to present during the proceedings

Notice: This page describes Motion to Compel Discovery when used pretrialwhich is quite different than the Posttrial Motion to Compel Discovery.

Motion to Compel Discovery:

(1960) A party’s request that the court force the party’s opponent to respond to the party’s discovery request (as to answer interrogatories or produce documents). Fed. R. Civ. P. 37(a). – Often shortened to motion to compel. – Also termed motion to enforce discovery.”

Discovery:

n. (16c) 2. Compulsory disclosure, at a party’s request, of information that relates to the litigation.  See Fed. R. Civ. P. 26-37; Fed. R. Crim. P. 16.   The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production.  Although, discovery typically comes from parties, courts also allow limited discovery from nonparties. 3. The facts or documents disclosed <the new associate spent all her time reviewing discovery>. 4. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.  discover, vb. -discoverable, adj.” [1]

     Excerpt from Geoffrey C. Hazard Jr. & Michele Taruffo’s American Civil Procedure: An Introduction (1993):

    “Discovery has broad scope. According to Federal Rule 26, which is the model in modern procedural codes, inquiry may be made into ‘any matter, not privileged, that is relevant to the subject matter of the action.’  Thus, discovery may be had of facts incidentally relevant to the issues in the pleadings even if the facts do not directly prove or disprove the facts in question. [2]

Initial Disclosure:

Civil procedure. In federal practice, the requirement that parties make available to each other the following information without first receiving a discovery request:

(1) the names, addresses, and telephone numbers of persons likely to have relevant, discoverable information,
(2) a copy or description of all relevant documents, data compilations, and tangible items in the party’s possession, custody, or control,
(3) a damages computation, and
(4) any relevant insurance agreements. Fed. R. Civ. P. 26(a)(1)(A)-(D).”

Pretrial Discovery:

(1939) Discovery conducted before trial to reveal facts and develop evidence. * Modern procedural rules have broadened the scope of pretrial b discovery to prevent the parties from surprising each other with evidence at trial.”

Jurisdictional Discovery:

(1961) Discovery that is limited to finding facts relevant to whether the court has jurisdiction. * A court may allow limited jurisdictional discovery before it rules on a motion to dismiss for lack of jurisdiction.”

Merits Discovery:

(1975) Discovery to uncover facts that support the claim or defense, or that might lead to other facts that will support the allegations of a legal proceeding.”

Reciprocal Discovery:

(1913) 1. The corresponding rights and duties of both sides of litigation to engage in discovery; especially, the prosecution’s right to the disclosure of information and documents from a criminal defendant. 2. See reverse Jencks material under JENCKS MATERIAL.”

Jencks Material:

(1961) Criminal procedure. A prosecution witness’s written or recorded pretrial statement that a criminal defendant, upon filing a motion after the witness has testified, is entitled to have in preparing to cross-examine the witness. * The defense may use a statement of this kind for impeachment purposes. Jencks v. U.S., 353 U.S. 657, 77 S.Ct. 1007 (1957); Jencks Act, 18 USCA § 3500. Cf. BRADY MATERIAL. ,

Reverse Discovery
aka “Reverse Jencks Material
:

(1990) Criminal procedure. A defense witness’s written or recorded pretrial statement that a prosecutor is entitled to have in preparing to cross-examine the witness. * Reverse Jencks material may be obtained during pretrial discovery. Discoverable statements include a witness’s signed or adopted written statement, and transcripts or recordings of the witness s oral statements, including grand-jury testimony. U.S. v. Nobles, 422 U. S. 225, 231″34, 95 S. Ct. 2160, 216668 (1975); Fed. R. Crim. P. 26. 2. — Also termed reverse Jencks; reverse discovery; reciprocal discovery.

Accelerated Discovery:

(1973) A party’s production of relevant evidence to an opponent at a time earlier than would otherwise be required by rule or standing order of the court. * The accelerated discovery is usually carried out in compliance with’a specific court order or the parties’ agreement — Also termed accelerated disclosure.

Document Discovery:

“The use of devices to request an opponent’s production of documents containing information relevant to litigation.”

Discovery Abuse:

(1975) l. The misuse of the pretrial discovery process, especially by making overbroad requests for information that is unnecessary or beyond the scope of permissible disclosure or by conducting discovery for an improper purpose.  Also termed abusive discovery.

     Excerpt from Charles Alan Wright’s The Law of Federal Courts (5th ed. 1994):

     “The term ‘discovery abuse’ has been used as if it were a single concept, but it includes several different things. Thus, it is useful to subdivide ‘abuse’ into ‘misuse’ and ‘overuse.’ What is referred to as ‘misuse’ would include not only direct violation of the rules, as by failing to respond to a discovery request within’ the stated time limit, but also more subtle attempts to hara s or obstruct an opponent, as by giving obviously inadequate answers or by requesting information that clearly is outside the scope of discovery. By ‘overuse’ is meant asking for more discovery than is necessary or appropriate to the particular case. ‘Overuse,’ in turn, can be subdivided into problems of ‘depth’ and of ‘breadth,’ with ‘depth’ referring to discovery that may be relevant but is simply excessive and ‘breadth’ referring to discovery requests that go into matters too far removed from the case.” [3]

Discovery Abuse:
(Second Definition)

“2. The failure to respond adequately to proper discovery requests. -Also termed abuse of discovery.

Discovery Disclosure:
(Second Definition)

“2. The mandatory divulging of information to a litigation opponent according to procedural rules. — Also termed pretrial disclosure; compulsory disclosure; automatic disclosure; discovery disclosure. — disclosural, adj.

     Excerpt from Jay E.‘Grenig & Jeffrey S. Kinsler’s Handbook of Federal Civil Discovery and Disclosure:

     “Rule 26(a) [of the Federal Rules of Civil Procedure] reflects a shift away from the traditional method of obtaining discovery through the service of written demands toward requiring automatic disclosure by the parties of information that would invariably be requested.  The goal of automatic disclosure is the creation of a more efficient and expeditious discovery process. . . . Rule 26(a)(1) provides for the initial disclosure of specified information relating to witnesses, documents, and insurance agreements.  Rule 26(a) (2) provides for the disclosure of information regarding experts who may be used at trial.  Rule 26(a)(3) provides for specified pretrial disclosures regarding witnesses, evidence, and objections.” [4]

Discovery Immunity:

(1975) An exemption provided by statute, caselaw, or court rules to exclude certain documents and information from being disclosed during discovery.”

Administrative Discovery“Discovery conducted under the rules for an administrative hearing.

Administrative Hearing“(1911) An administrative-agency proceeding in which evidence is offered for argument or trial.”

References:

[1]: All definitions from Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Geoffrey C. Hazard Jr. & Michele Taruffo, American Civil Procedure: An Introduction 115 (1993).

[3]: Charles Alan Wright, The Law of Federal Courts 5 81, at 580 (5th ed. 1994).

[4]: Jay E.‘Grenig & Jeffrey S. Kinsler’s Handbook of Federal Civil Discovery and Disclosure s 1.15, arcs-66 (2d ed. 2002)

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