Appellate Tip: State Court Motions to Compel & For Protective Orders Under the New Rule Changes

Appellate Tip: State Court Motions to Compel & For Protective Orders Under the New Rule Changes

2018-10-08T08:23:47+00:00 October 8, 2018|Publications|

Written by: Jon Barnes

We all know that new rule changes took effect in July 2018, and that these changes affect several different aspects of civil litigation in our state courts.  Among them are changes to the procedure for: (a) motions to compel; and (b) motions for a protective order.  The following is a summary of this new process, but you should obviously familiarize yourself with the rule itself if you plan to seek such relief.

First of all, say goodbye to the days when you could just fire off a motion with the required good faith consultation certificate attached.  Now, in addition to certifying that the parties have consulted, you must also follow the “expedited procedure for resolving discovery and disclosure disputes” under Rule 26(d).  According to the rule’s plain language, “this procedure applies to all disputes between parties to the action that could properly be addressed in motions for protective order under Rule 26(c) or motions to compel discovery or disclosure under Rule 37(a).”

The new procedure requires the parties to file a joint statement of discovery or disclosure dispute.  So you must obtain a written position statement from your opponent to present alongside your own position.  This joint statement is just that—it is “not a motion.”  The purposes of the joint statement are to notify the court of the dispute, and to make a record of the discovery or disclosure sought.

Keep in mind, however, this does not foreclose the possibility of fully briefing the dispute.  The new procedure only applies “[u]nless the court decides to permit full briefing,” which the court is expressly authorized to do under the new rule.  Moreover, the rule does not prohibit the parties from requesting to fully brief the issues.  So if full briefing is something you want, let it be known.

Economy of language is critical here.  The joint statement must not exceed 3 pages of explanatory text, with each party entitled to submit only one and one-half pages of that text.  So avoid beating around the bush or unnecessary “throat clearing.”  Just cut to the chase.  Also, you may not attach any exhibits to the joint statement.  After the matter is resolved, however, “a party may file with the court those materials necessary to create a record of the discovery or disclosure the court permitted or denied.”

Once you’ve filed the joint statement, you should ask for a hearing.  The parties may jointly contact the court by telephone to request a hearing—unless the court orders otherwise, of course.  Next, the court should schedule the matter at the earliest convenient time, whether by telephone or in person.

Finally, nothing in this new rule limits the parties’ ability to seek court intervention by telephone during a deposition without first filing a written statement of discovery dispute.  So don’t be shy if such a need arises.