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Motions to Compel in Trust and Will Lawsuits

Nobody likes Motions to Compel. We don’t like Motions to Compel. Judges don’t like them, and neither do the opposing parties we bring them against. But they are, sometimes, required to be brought in cases where you need information to make sure you know what facts, witnesses and documents are in a case prior to going to going to trial.


How Motions to Compel Come About

Here’s how Motions to Compel generally arise. We send the first set of written discovery to an opposing side, which includes Form Interrogatories, Special Interrogatories, Document Demands, Requests for Admissions, and they get thirty days to respond to those. Generally, the opposing party will ask for a thirty-day extension, which is routinely granted. That means there will be at least sixty days between when the discovery was initially sent to when we receive answers. When the answers finally arrive, they’re terrible. They don’t answer any of the questions, they’re just a bunch of boilerplate objections. It’s really just a bunch of garbage. Unfortunately, in California, under our laws, we must engage in a meet and confer with the other side, the opposing counsel who just gave you the terrible answers. We are required to try and work out our differences by meeting and conferring with the opposing party.

After the meet and confer process, the opposing party will typically agree to provide you with a supplemental response to remedy the problems with their first set of answers. And they will typically have two to four weeks to provide the updated answers. When the second set of responses comes in, they’re just as bad as the first. You then have to do another meet and confer with the opposing party. You’ve got to work with the opposing counsel, usually by letters; it’s not done very well over the phone, because people get heated in the phone conversations about what we’re entitled to, or what they think we’re not entitled to. But, generally, you’re going to give them one more shot at getting you valid discovery responses.

Yet again, the third response comes in and the opposing counsel still gives you terrible responses. At that time, you’re going to be forced to do a motion to compel. The motion you file with the court will state the questions you asked, the answers that were provided, and an explanation of why the answers are not sufficient. That motion to compel will be heard by the court and then the court will decide who wins and who loses. In our experience, we win most of these motions to compel because we only ask for items that we are entitled to under the California Discovery Act. At times, the court will also award monetary sanctions against the opposing counsel.

Informal Discovery Conferences

This is a long, drawn out process. It’s expensive. It’s time-consuming. It’s not fun. But it’s something that has to be done. One procedural device that started on January 1, 2018 are what we call Informal Discovery Conferences. That’s outside the scope of this particular article dealing with motions to compel. But Informal Discovery Conferences are going to hopefully come in and help so that we don’t have to bring so many motions to compel in the future. We’ll be doing another blog post discussing Informal Discovery Conferences.