Motion to Compel

In any legal action, whether civil or criminal, all of the parties to the action are entitled to receive information and evidence from the other parties, though they have to ask for it specifically. This is usually done through a series of requests that the other party answer questions, and provide documents or other items. Should a party refuse to provide the information, a request can be made that the court order – or compel – the party to comply with the request. This is called a Motion to Compel. To explore this concept, consider the following Motion to Compel definition.

Definition of Motion to Compel

Noun

  1. A legal request that a court of law compel one party to a legal action to provide evidence to another party to the action.

What is a Motion

In the U.S., a motion is a tool used to ask the court to make a decision on something. A motion can be filed at any point during a legal action, when something pertaining to the case itself is disputed. The types of motions that may be made, and the procedure for making a motion is governed by the rules of court for the specific jurisdiction.

Motions are commonly made for a wide variety of purposes, such as:

  • Motion to Continue – a request to postpone a hearing or trial to a later date
  • Motion to Dismiss – a request for the court to dismiss the lawsuit or legal action without a decision in favor of either party
  • Motion for Modification – a request that the court change, or “modify,” a previously made order of the court, such as a child custody order
  • Motion for Sanctions – a request that the court impose sanctions, or a “penalty,” on a party to the case for some wrongdoing in administering the case
  • Motion to Compel – a request that the court order a party to the legal action to do something, which has previously been ordered, or which is within the bounds of normal procedure

Filing a Motion

While a motion may, in some instances, be made orally during a trial or hearing, a motion generally must be made through a set of written documents. These documents generally include:

  • Notice of Motion – a written notice to the opposing party that the motion has been filed with the court, and the date on which a hearing will be held
  • Motion – a petition specifying what is being asked of the court (sometimes referred to a “petition”)
  • Points and Authorities – a written statement of the legal reasons the court should grant the request made in the motion

Types of Discovery

Discovery – the process of requesting and obtaining information from an opposing party to a legal action – takes many forms. The most commonly used include:

  • Deposition – A legal proceeding outside court in which a party to the legal action, or a witness, is asked questions, to which he must respond under oath.
  • Interrogatories – Written questions sent to one party to a legal action which must be answered in writing, under oath.
  • Request for Admission of Facts – A written request for a party to a legal action to admit certain specific facts. Responses must be provided in writing, under oath.
  • Production of Documents – A written request for a party to a legal action to provide certain specified documents, or other tangible things (such as video or audio recordings). Documents commonly requested include bank statements, tax documents, pay stubs, letters, memos, emails, etc.
  • Request for Inspection – A request to be allowed to look at certain tangible items, other than written documents, the other party has in its possession or control.
  • Subpoena – A court summons requiring a witness to appear for a deposition, or in court. In most jurisdictions, a subpoena can be issued and signed by an attorney, who is an officer of the court. It is just as legally binding as a court-ordered subpoena.
  • Subpoena Duces Tecum – A court summons requiring a witness or third party to appear at a deposition, bringing with him certain specified documents. This type of subpoena is commonly served on people who are custodians of documents, such as an accountant, or a records officer. In most jurisdictions, a subpoena duces tecum can be issued and signed by an attorney, who is an officer of the court.

Motion to Compel Discovery

Discovery is the process by which the parties to a legal action request and obtain information and evidence from the other parties. The Rules of Court of each jurisdiction are very specific as to how this information can be requested, and how the other party must respond – including a very tight timeline. Failing to provide full responses to discovery requests, or to respond on time, is the topic of most motions to compel.

In some jurisdictions, a party is permitted to file a Motion to Compel Discovery immediately if the other party has missed the deadline for responding. Many jurisdictions, however, attempt to lessen the burden this places on the court by requiring the requesting party to prove a good faith effort was made to obtain the responses before filing. This is commonly referred to as a “meet and confer,” though it doesn’t usually involve an actual physical meeting between the parties. Being late is the most common issue in discovery responses, and it is commonplace for an attorney whose client is going to be late to call the requesting party and request an extension of time. Refusal to grant a reasonable extension of time when requested would not be looked upon favorably should the requesting party file a Motion to Compel Discovery.

For example, a Motion to Compel Discovery has been filed by Mary’s attorney on the day after her estranged husband, Neal, was supposed to deliver his answers to interrogatories and request for production of documents. The day the discovery was due, Neal’s attorney called Mary’s attorney to say that it was taking longer than expected to get the documents together, and to ask for an extension of time. The couple is embroiled in a hotly disputed divorce, so Mary is pleased by the idea of taking her ex to court. In this example, the Motion to Compel Discovery is not likely to be well received by the court, as Mary prevented her attorney from granting a reasonable extension of time, and no good faith attempt to resolve the issue was made.

There are cases in which a party provides incomplete answers to interrogatories (written questions), skips questions, or flatly refuses to answer some questions. Sometimes a party refuses to hand over copies of requested documents, or claims to not have any pertinent documents, when the requesting party is sure that is not true. These are additional reasons for filing a Motion to Compel Discovery.

Motion to Compel Compliance with a Subpoena

Another reason a Motion to Compel might be filed is a third party or witness’ refusal to comply with a subpoena, or refusal to testify in a deposition. Procedures for issuing a subpoena, whether for a person to appear for deposition, or for a person to provide copies of documents, are clearly outlined in the jurisdiction’s Rules of Court.

While failing to comply with other discovery requests may result in sanctions by the court. Failing to appear or otherwise comply with a subpoena may result in a charge of contempt of court, which may result in a hefty fine, or even jail time.

In many cases, the custodian of the records requested contacts the attorney who issued the subpoena duces tecum to ask whether his appearance and testimony will be required, or whether it would suffice to provide the documents. If the documents alone will satisfy the requirement, they must be provided in a sealed envelope, with a signed certification that the documents are indeed the real documents.

When filing a Motion to Compel compliance with a properly issued subpoena, the party must prove to the court that a good faith effort to obtain cooperation was made.

Hearing on Motion to Compel

When a motion to compel is filed with the court, a hearing is scheduled. At the hearing, the party that filed the motion will need to tell the judge why the other party should be compelled to do something. As Motions to Compel Discovery are the most common type of motion to compel, the filing party will need to explain to the judge why the information sought from the opposing party is important to his case. He will also need to show that he made a good faith attempt to work it out with the other party, rather than simply filing the motion.

If the party objected to certain interrogatories or requests for other items, the moving party (the party that filed the motion) must convince the judge that the objection should be overruled, and the information provided. If the party claimed he didn’t have the information or items requested, the moving party will want him to state – on the record – that he doesn’t have them. Once that happens, that party will not be able to use the documents at trial. Also, if it is later determined that he did, in fact, have the documents or items, he may be charged with contempt of court.

Whichever party wins at a motion to compel hearing is likely to be awarded some type of sanctions, such as the payment of attorney’s fees, some other monetary fine, or the case might even be dismissed, or some portion of it excluded.

Motion to Compel Example in Apple

In December, 2015, a man went into a center for people with developmental disabilities, and opened fire, killing 14 people. The FBI tracked the purchase of the gun used in the shooting to Syed Farook, then surrounded his home in a standoff. Eventually, Farook and his wife, Tashfeen Malik, attempted to flee in a black SUV. They got into a shootout with police, and both were killed.

The FBI, fearing the mass shooting was a terrorist act instituted by a terrorist cell, attempted to go through the Farook’s iPhone to determine who he had been in contact with. Unfortunately, the authorities were unable to break into the encrypted information on the phone, so they sought the help of Apple in unlocking the information.

While Apple complied with a subpoena to turn over account information, and had their engineers give advice as to investigative options available to the government, the company refused to provide a code to open the encrypted information.

The U.S. Department of Justice (“DOJ”) filed an ex parte Motion to Compel Apple to unlock Farook’s encrypted iPhone. On February 16, 2016 hearing, Apple was ordered by the court to assist the FBI to gain entry into Farook’s iPhone. That same day, Apple CEO Tim Cook wrote a letter to Apple’s customers, stating:

“In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.

“The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks …

“We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.”

The letter made it clear to the DOJ that Apple had no intention of complying with the court’s order. On February 19, 2016, the DOJ filed a Motion to Compel compliance with the February 16 order. Both in the motion, and at the subsequent hearing, the government tirelessly describes to the court the necessity for the information in Farook’s phone, in their investigation into the terrorist attack.

In this example of a Motion to Compel, the issue of whether compelling Apple to provide a “back door,” or specialized software making it possible for the government to break into encrypted iPhones violated the constitutional right to privacy for its customers quickly found its way to the U.S. Supreme Court.

Related Legal Terms and Issues

  • Ex Parte – An action in a legal proceeding brought about by one party, without the participation or presence of the opposition.
  • Rules of Court – The body of law that specifies the rules and standards followed by the court when adjudicating civil lawsuits, or criminal trials.
  • Sanctions – Penalties imposed by the court to create incentive to obey the law, or to comply with the rules and regulations.

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