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  1. #1
    Join Date
    Jun 2008
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    3

    Post Case Law In Support Of A Motion To Compel After Discovery Deadline

    My question involves court procedures in Federal Court.

    Pro se litigate in Federal Civil Court.
    Made a FRCP 34 request for production of documents on Jan 8, 2008. Send certified letter on Feb. 27 to verify status. Phone conversation on March 12, other party promised to send documents. On April 2, emailed, no response. Emailed on April 9, party again promised to respond, documents to be mailed on following Monday/Tuesday overnight. Party emailed on May 7, again offering promises to respond. I filed a Motion to Compel on May 12. Received only 1 of the 24 documents requested on June 4. Opposing party filed a Motion in response to Motion to Compel as Moot, because they responded. Court ruled on Motion to Compel on June 6, against my Motion to compel 1) Party had responded, 2) Motion to Compel was filed after deadline to file motion Feb 11. Case Management order states “Any motion to compel discovery shall be filed and served within 30 days of the act or omission in discovery complained of, unless the time for filing such motion is extended for good cause shown.”

    Need case law to support the Motion to Compel after discovery, i.e. to justify the late filing of the Motion. I have found a case referencing a promise of a party to respond by a date is an “Order”.

    While courts have only applied Rule 37(b)(2) where parties have violated a court order, courts have broadly interpreted what constitutes an "order" for purposes of imposing sanctions. See, e.g., Metropolitan Life Ins. Co. v. Cammon, No. 88 C 5549, 1989 WL 153558, at * 4 (N.D.Ill. November 7, 1989) (violation of an "order" found where a party failed to deliver documents it promised to turn over by a certain date)

    Any assistance is appreciated. Direct contact by email is encouraged.

  2. #2
    Join Date
    Sep 2005
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    73,580

    Default Re: Case Law In Support Of A Motion To Compel After Discovery Deadline

    The case law you are likely to find will inform you of your need to follow the court's scheduling order. Also, as the motion was granted on two grounds (they complied with discovery and you violated the scheduling order), even if the court entertained your late motion (as it effectively did) it has ruled that they complied with discovery.

    You can research recent case law on sites like lexisone.com (or, for a fee, get access to a more complete database).

  3. #3
    Join Date
    Jun 2008
    Posts
    3

    Default Re: Case Law In Support Of A Motion To Compel After Discovery Deadline

    Though I cannot agree entirely with the Court, I do disagree the disclosure provided by the Plaintiff was deficient as they supplied only 1 of 24 documents requested. (It is for this reason that I’m asking this question).

    In the Order issued by the Court addressing my Motion to Compel, “The deadline for completing discovery in this matter was February 15, 2008 [per case management order]. However, the instant motion to compel was not filed until May 12, 2008. Defendant has not proffered an adequate explanation for the untimeliness of this motion, and the instant motion could be denied as that basis alone. “

    I want to address the emphasized text above.

    Plaintiff’s counsel is a USDOJ Trial Attorney, so why would they respond to any Motion to Compel, if they did not believe the motion was valid? When one party asks the other to allow more time to respond to a discovery request, and the other party agrees, does this not have the effect of an order? Plaintiff also asks us to join in a Motion to Extend the time to file Summary Judgment. Reason for the extension from Plaintiff ‘s email, “Once you receive my discovery responses we will talk again and see what we might be able to work out”. Therefore, I believed that I had additional time to file a Motion to Compel up to the date to file Motions for Summary Judgments.

    Do I have a valid reason? Should I again address this issue with the court?

    Thanks again for all responses.

  4. #4

    Default Re: Case Law In Support Of A Motion To Compel After Discovery Deadline

    In Federal Court you need an attorney, especially if you are going against the government.

  5. #5
    Join Date
    Jun 2008
    Posts
    3

    Default Re: Case Law In Support Of A Motion To Compel After Discovery Deadline

    I have spent the last 10 days looking for an attorney with no success. Any assistance is appreciated.

  6. #6
    Join Date
    Jun 2008
    Posts
    4

    Default Re: Case Law In Support Of A Motion To Compel After Discovery Deadline

    I'm not an attorney but I'm currently suing a government agency pro se and doing well, it seems, which I hear is unusual.

    You could try writing to the judge to claim that "equitable tolling" applies because you were waiting for a response. It sounds like you may need to clarify that you asked for more documents than you received. If they only promised to respond, that's not a promise that they'll send documents, but maybe equitable tolling still applies. Read up on it.

    Here's a direct link to the free case law provided by LexisONE: http://www.lexisone.com/lx1/caselaw/...CaseSearchForm

    I never tried LexisONE, but I've used plol.org. Unfortunately, you can't determine what page part of a decision is on in order to cite it specifically, but you can cite the first page of the decision.

    Or go to a law library.

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