Discovery – Deficiencies & Motion to Compel Discovery (No Response or Deficient Response)

Motion to Compel Discovery (No Response or Deficient Response)

No Response to Discovery

Under Rule 37.01 opposing party/counsel must answer Interrogatories and Request for production of documents within 30 days.   If no responses is received within 30 days the following should happen.

1. Initial Email: An initial email to OPA should be sent by discovery legal assistant indicating that discovery is late and that responses need to be provided by (give date – about a week) or we may be forced to file a motion to compel.
   1. 1. 1. Email Example:     “Our office served discovery requests upon you on January 4, 2024. The responses to these requests were due on February 4, 2024. To date, we still have not received your responses. Please provide your responses to our discovery requests no later than (give date – about a week out) or we may be forced to file a motion to compel. 
2. Consult & Follow up Email or Letter: If there is still no response, discovery legal assistant should consult w/ attorney about next steps. Which would either be the attorney sending an email or discovery legal assistant drafting a formal letter regarding the deficiencies. If the attorney wants to do an email first, that’s fine, but before any motion to compel there must be a formal letter sent as well.
   1. 1. 1. Email / Letter example:  “We previously sent you notice on ((whatever date first email was)) that your Responses to Interrogatories, Request for Production of Documents and Request for Admissions are overdue.  They were served upon you on January 4, 2024 and were due on February 4, 2024.  If we do not receive your Responses by May 3, 2019, we will be forced to file a motion to compel
3. Proceed with Motion: If you’ve sent a formal letter, there’s still no response, and the attorney/client want to move forward with Motion to Compel (see more on this at the end of the article), the paralegal should be notified so they can get a motion hearing and prepare for the hearing by following the steps for like you would in requesting a temp relief hearing: Temporary Relief Motions (Info for paralegal & client) – K|H Law Wiki (theintervenors.com)  (Starting at Step 2) A big difference that should be noted is that the client does NOT draft an affidavit for a motion to compel – only the attorney drafts an affidavit.

Deficient Response to Discovery

Under Rule 37.01, in addition to responding to discovery within 30 days, a party must provide complete answers and documents (if a party fails to answer an interrogatory, provides an evasive or incomplete answer, then it’s considered deficient).

However, being deficient on its own is not enough to warrant a motion to compel. The moving party must show how the information produced was insufficient or additional information is necessary and proportional to the needs of the case. Matter of Trust Created by Hill on Dec. 31, 1917 for Ben. of Maud Hill Schroll, 499 N.W.2d 475

Common examples of deficient answer to an interrogatories:

• OPA referring us to a document rather than answering the actual interrogatory
• Not providing answers to every subpart (a, b, c, d, etc) to the question and instead just giving a general answer, providing only partial information, or ignoring the subparts
• Not answering the question correctly or entirely.
• Skipping questions entirely
• Giving conflicting answers that then provide deficient answers. For example, under the interrogatory regarding retirement accounts, they say they don’t have any and they also don’t provide any in response to the RPD request for statements. However, in reviewing the paystubs provided in RPD, we can see they are paying money into a retirement account each month. The deficiency would be that they obviously have a retirement account, so they need to provide that information.
• Saying the client is working on gathering the information and will provide when available.
• Making objections that aren’t valid.

In those situation, the following should be done.

1. Draft Deficiency Letter: When drafting the letter outlining the deficiencies, it must be specific and should indicate the following:
   1. 1. What specific interrogatory # or RPD # was deficient, how it was deficient (was nothing provided, were things missing, was the question not answered correctly, were only partial answers given, were wrong documents provided, etc).
      2. When the information should be submitted to our office by (new deadline)
      3. That if we don’t receive the information, we will be moving forward with a motion to compel discovery and asking that OPP be responsible for attorney’s fees for having to bring the motion.
         1. Here are a couple examples of these letters (they may not all be perfect and include everything noted above, but are good starting points)
            1. 2022-08-16 LT OPA re def to our requests ESERVED
            2. 2023-07-18 LT OPA re def discovery
            3. 2022-12-06 LT OPA re their discovery def ESERVED
            4. 2023-04-06 LT OPA re discovery deficiencies
            5. 2023-11-01 LT OPA re Discovery Deficiencies
            6. 2024-07-08 LT OPA re disco def ESERVED:
2. Proceed with Motion: If you’ve sent a formal letter, there’s still no response, and the attorney/client want to move forward with Motion to Compel (see more on this at the end of the article), the paralegal should be notified so they can get a motion hearing and prepare for the hearing by following the steps for like you would in requesting a temp relief hearing: Temporary Relief Motions (Info for paralegal & client) – K|H Law Wiki (theintervenors.com)  (Starting at Step 2) A big difference that should be noted is that the client does NOT draft an affidavit for a motion to compel – only the attorney drafts an affidavit.

Deciding whether to proceed with a Motion to Compel

Whether OPA hasn’t responded at all to discovery or they are deficient, the attorney and client will need to decide if they will move forward with a Motion to Compel.

If OPA hasn’t responded at all, then it’s much more common to move forward with a motion to compel because we have no information at all and can’t proceed with trying to figure out debts and assets.

If OPA has partially responded and is just deficient in some answers/documents, then the attorney needs to take a look at what we are still missing and have a conversation with the client about whether or not to pursue a motion to compel. Obviously, there is a cost up front for the motion to compel and while statute indicates that if OPP/OPA is found to be deficient, they have to pay our fees, that isn’t always the case. We need to consider how important the information is that is still missing and if it’s worth $2000 – $3000 to do a motion to compel knowing there is a possibility that OPP may not be ordered to pay it, either if we lose the motion or if the Judge just decides not to make them pay.

Preparing for the Motion Hearing

Must submit NOMM, Affidavit of Attorney(with invoice exhibit), Proposed Order, and (maybe) Memo of Law

What to include in your affidavit:

• Detailed information about all attempts to get discovery issues taken care of, including emails, letters, calls, texts – whatever. Also include any letters or emails as exhibits.
• Details about the discovery that hasn’t been produced and why we have to have it. Just saying “we requested it and they haven’t given it to us” doesn’t always work with Judges, especially if the OPA has partially complied. You need to be specific about why we must have the information that’s been requested.
• A paragraph referencing the exhibit you prepare that itemizes all the work done related to attempting to get discovery responses and preparing the documents for the Motion to Compel.
• A paragraph that clearly lays out how much money we are requesting for fees. This should include the time we’ve billed (your exhibit), filing fee that we will have to pay, and anticipated costs to prepare for and attend hearing. You should have a final, specific number you are requesting.
• Required per Rule 37.01: Must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. 
  • Language similar to this should suffice: Prior to bringing this motion, I have engaged in a good faith effort to confer (or attempt to confer) with OPA to acquire Husband’s full and complete answers and responses to Wife’s Interrogatories and Requests for Production of Documents. These efforts have included the above referenced communication with Husband’s counsel
• Required by Rules:  A paragraph outlining the hourly rate for the attorney, paralegal, and legal assistant
• Required by Rules: That the affiant has reviewed the work in progress or original time records, the work was actually performed for the benefit of the client and was necessary for the proper representation of the client, and that charges for any unnecessary or duplicative work has been eliminated from the application or motion.
  • Language similar to this should suffice:  Attached as Exhibit 1 is a true and correct itemization of the professional services billed to Petitioner by Kohlmeyer Hagen Law Office through April 7, 2023, related to the discovery components of the motion. A description of the services provided, the individual providing the services, the date of performance, duration, and an itemized list of the costs and expenses for such services is provided below. Portions of some descriptions have been redacted to protect attorney client privilege. I have reviewed all the work in progress and the time records to ensure the work
    was actually performed on behalf of Petitioner, was necessary, and was not duplicative. There will of course be additional time spent preparing for and attending the hearing.

What to include in your NOM and Proposed Order:

• The specific discovery requests you are asking the Court to require OPA to answer/respond to
• The specific dollar amount of attorneys fees you are asking for.

What to include in your Memo of Law:

Talk to your attorney about this and whether it needs to be done

• Minn. Gen. R. Prac. 119.02. “The motion should be accompanied by a memorandum of law that discusses the basis for recovery of attorney’s fees and explains the calculation of the award of fees sought and the appropriateness of that calculation under applicable law.” Minn. Gen. R. Prac. 119.04.
• However – “A district court has discretion to strictly enforce or to waive the requirements of rule 119 when considering a motion for attorney fees.” Rooney v. Rooney, 782 N.W.2d 572, 577 (Minn. Ct. App. 2010) (citing Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999); Minn. Gen. R. Prac. 119, 1997 advisory comm. cmt. (“This rule is not intended to limit the court’s discretion, but is intended to encourage streamlined handling of fee applications and to facilitate filing of appropriate support to permit consideration of the issues.”)).

Here are some examples of NOMM and Aff:

(MN CLE NOMM to Compel Example) NOMM to Compel Discovery

2023-09-15 Motion to Compel

2020-10-12 Notice Motion to Compel discovery EFILED ESERVED

2020-05-28 Aff of JCK for motion to compel w exhibits EFILED

2020-05-28 Notice Motion to Compel discovery EFILED

2023-04-13 Aff of Andrew Tatge in Support of Motion for Attys Fees

2023-04-13 Petitioner’s NOMM to Compel Discovery & for Temporary and Other Relief