What is a motion to compel discovery?
In civil lawsuits, each party usually exchanges important information with the other parties throughout the case. This exchange, known as “discovery,” happens before the trial.
If the other side fails to respond to your formal discovery requests, such as form interrogatories, special interrogatories, or requests for production, you can file a motion to compel their response. This guide provides step-by-step instructions for obtaining such an order. If the other party provides incomplete or invalid responses (e.g., not verified), you need to file a motion to compel further responses, which this guide does not address.
Templates
Step-by-Step Instructions
Step1: Meet and Confer
Before moving to compel discovery responses, California law requires the parties to “meet and confer.” But what does this mean?
California Code of Civil Procedure section 2016.040 mandates that parties meet and confer in a “reasonable and good faith attempt at an informal resolution of each issue presented by the [discovery] motion.”
What does this really entail? Your meet and confer efforts must be sincere and aimed at resolving the dispute. However, what constitutes a good faith meet-and-confer effort varies based on factors like the case’s complexity, litigation history, and the type and scope of discovery requested.
Naturally, the more complex the issues, the more time and effort you’ll need to invest in resolving the dispute. The meet-and-confer effort should reflect the same level of persuasive effort as the discovery motion itself.
Here are some guidelines:
- The meet-and-confer discussions should maintain the same level of professionalism as court filings and arguments.
- In a relatively simple case, merely exchanging a single letter or email isn’t enough to satisfy the meet-and-confer requirement. At a minimum, meet or talk by phone to attempt to resolve the issues, then follow up with a letter detailing your efforts.
- The meet-and-confer efforts should occur well before the deadline to file the motion so that your timeframe doesn’t appear unreasonable.
- Avoid making ultimatums that don’t reflect good faith efforts to resolve disputes.
Take your meet and confer responsibility seriously, as failing to do so carries significant consequences. The court must impose monetary sanctions on any party or attorney who fails to meet and confer in good faith, even if that party prevails on the discovery motion. (Code Civ. Proc., § 2023.020.)
Furthermore, if the section governing a particular motion requires a declaration showing a reasonable and good faith attempt to resolve the issues informally, failing to meet and confer constitutes a misuse of the discovery process. This can subject the offending party or attorney not only to monetary sanctions but also to issue, evidence, contempt, or terminating sanctions. (See Code Civ. Proc., §§ 2023.010(i), 2023.030(a)-(e).)
Sample Meet and Confer Letter
Casey Counselor, Esq.
5678 Elm Street
Los Angeles, CA 90012
February 14, 2025
Re: Widget Corp. v. John Doe, Case # 34-2013-12345678
Dear Mr. Counselor:
I am the defendant in the above-referenced case. Your client, Widget Corp., was served with my Request for Production, Set One, on January 3, 2013, 42 days ago. To date, you have not responded to the Request for Production.
This letter asks you to please respond to the Request for Production, Set One by March 1, 2013. If I do not receive these responses, I will file a motion in court to obtain compliance and sanctions as provided by California Code of Civil Procedure § 2031.300.
Yours truly,
John Doe
A reasonable time to respond to your letter could be one week or more if the interrogatories or requests for production are particularly complex. The “meet and confer” requirement allows you to demonstrate to the court that you are making a “reasonable and good faith attempt at an informal resolution.” California Code of Civil Procedure (CCP) § 2016.040. A sample “meet and confer” letter is included at the end of this guide.
While not mandatory, it is advisable to have someone over 18 and not involved in the case mail the letter for you and complete a Proof of Service by First Class Mail (POS-030). This way, if you need to file a motion with the court, you can attach the proof of service as an exhibit. Proof of Service by Mail.
Step 2: Reserve Your Hearing Date and Determine Deadlines for Filing and Serving
Where to make the motion
The motion to compel is in the court department that your case is assigned to. You can find the court department in the “Civil Case Cover Sheet” that was part of the Summons and Complaint that you received from the court if you’re a plaintiff or from the process server if you’re a defendant.
Determine the legal deadline to file the motion to compel in court.
File the motion as soon as possible. Your reservation isn’t final until the motion is filed and fees are paid. The last legal day to file with the court is at least sixteen court (business) days before the motion date (CCP § 1005). “Court days” are Monday through Friday, excluding court holidays. To determine if a particular filing date meets this deadline, count backward from the day before your hearing until you reach the sixteenth court day (CCP § 12c). For example, if your reservation is for Monday, June 18, start counting backward from the previous court day, Friday, June 15, as day one. Skip weekends and court holidays (like Memorial Day on May 28). The sixteenth court day before the hearing is May 24, the last day to file the motion.
Reserve the motion to compel hearing date
The next step is to reserve the hearing date for your motion. Fortunately, many courts offer the convenience of reserving a motion to compel hearing date online through their website. This online reservation system simplifies the process, allowing you to easily select a suitable date and avoid potential scheduling conflicts. Be sure to confirm your reservation by filing the motion and paying any required fees promptly.
Step 3: Write Your Motion to Compel
There is no pre-printed form for this motion. You will need to customize a motion on “pleading paper.” Instructions and a sample motion are provided at the end of this guide.
You must file a separate motion for each discovery response you wish to compel. For example, if you served both form interrogatories and requests for production and received no responses, you need to file two separate motions.
Parts of a Motion
A motion to compel responses to interrogatories or requests for production is made through a written motion. A motion is a request to the judge for an order.
A written motion consists of four parts (with the Notice of Motion and Motion combined):
- Notice of Motion and Motion
- Points and Authorities
- Declaration
The Notice of Motion informs the opposing party of the motion’s schedule, while the Motion specifies what is being requested. The Points and Authorities provide the legal basis for the motion, and the Declaration presents evidence supporting the motion, sworn under penalty of perjury.
In the samples and templates, these four parts are combined into a single document. While a proposed formal order can be included, the Sacramento County Superior Court typically issues minute orders for motions to compel discovery and does not require a formal order submission.
Modify the Template Motion
There is no Judicial Council form for this procedure. Instead, the documents must be typed on 28-line pleading paper. Customizable templates are available for download from these links:
Select the correct template! While the language of the motion is the same in both templates, the supporting points and authorities differ significantly. Points and authorities explain the legal basis of your motion to the court and the opposing party. Without the proper legal basis, the court cannot grant your motion. Ensure you use the correct template (for compelling responses to either interrogatories or requests for production) to increase your chances of having the court grant your motion.
Important: Your Declaration must include a copy of the discovery request at issue, along with the signed Proof of Service showing the date and method of service, attached as an Exhibit. Refer to Step 4 below for instructions on preparing the Exhibit.
Step 4: Assemble Your Documents And Make 4 Copies
Copy and Assemble Your Documents Make four (4) copies of your Motion. Serve one copy on the other party’s attorney (or the other party if they do not have an attorney); file the original and the other three copies with the court. Staple each copy, but leave the original unstapled so the court can scan it.
Attaching Exhibits Include Request for Admissions/Proof of Service: All Motions to Compel Response must have at least two exhibits attached: 1. a copy of the discovery request (including the signed Proof of Service showing the date and method of service on the responding party) and 2. a copy of your meet & confer correspondence. You may need additional exhibits depending on your situation.
For each exhibit attached to your motion, place a page in front of the exhibit identifying it as Exhibit A, B, and so on, in alphabetical order. In one copy, use bottom tabs to separate the exhibits for the judge’s convenience when reading the papers.
Step 5: Have the Motion Served and Attach the Proof of Service to Remaining Copies
Your motion must be served by someone over 18 who is not a party to the case. The server must complete a proof of service form, either Proof of Service by First Class Mail (POS-030) or Proof of Personal Service (POS-020). For more details on these forms, refer to our guides on Serving Documents by Mail and Service by Personal Delivery.
The proof of service form should be filled out but not signed. Make a copy of the unsigned form and staple it to the last page of the copy you will serve.
The server must then deliver or mail the service copy to the other party’s attorney (or the other party, if they do not have an attorney).
The server signs the Proof of Service form and gives the signed form to you.
Make copies of the signed Proof of Service. Attach the signed original to the original motion packet and the copies to the copy packets, after the last page. It is not necessary to copy the instruction page.
Step 6: File Your Motion Online
Go to the court’s website where your case is; that means the city e.g. Superior Court of Los Angeles. File the original (with original signed proof of service) You must pay the filing fee. It is usually between $45 o $65.
What Should I Include in My Motion?
Most NOTICED motions require the following components:
- Notice of Motion: This document informs the opposing party of the date, time, and location of the hearing, as well as the specific request being made to the court.
- Memorandum of Points and Authorities: This section provides a detailed explanation of the legal basis for the motion. It includes references to relevant laws, statutes, and case law to support your argument and convince the court of the merits of your request.
- Declaration: This is a sworn statement that provides factual evidence supporting your motion. The declaration should be signed under penalty of perjury and include any relevant documents or exhibits that substantiate your claims.
- Proof of Personal Service or Certificate of Service by Mail: This form verifies that the motion and all accompanying documents were properly served on the opposing party. The proof of service must be completed by someone over the age of 18 who is not a party to the case and should detail how and when the documents were delivered or mailed.
By including these components, you ensure that your motion is complete and meets the necessary legal requirements for the court to consider your request.
What happens after a motion to compel is filed?
Once you file the motion to compel discovery,the opposing party is given a specific period to file a written opposition to your motion. This document outlines their reasons for not providing the requested discovery. After the opposition is filed, you have the opportunity to file a reply to address the points raised in the opposition.
During the scheduled hearing, both parties will present their arguments. You will explain why the discovery is necessary, and the opposing party will explain why they believe the request is improper or burdensome.
After hearing both sides, the judge will make a decision. The judge can either grant or deny the motion. If the motion is granted, the opposing party is ordered to provide the requested discovery by a specific deadline. If the motion is denied, the current discovery responses remain as they are, and no further information needs to be provided.
In some cases, the judge may also impose sanctions if they find that a party has not been cooperative or has acted in bad faith. These sanctions can include fines or other penalties designed to enforce compliance with the discovery process.
Step 7: Opposition Papers and Your Optional Reply Papers
If opposing counsel or a self-represented party opposes your motion, they may serve and file an opposition at least nine court days before your motion. No fee is required to file an opposition. The opposition includes a memorandum of points and authorities and typically a declaration but does not require a notice of motion or motion. Be sure to check your mail and read any documents you receive carefully.
If the other attorney or party opposes your motion, you may choose to serve and file a reply to the opposition at least five court days before the motion (CCP § 1005). The reply must be served by overnight mail to reach the opposing party no more than one day after it is filed.
The reply is optional and is typically used to address new issues raised in the opposition.
Step 8: Review the Tentative Ruling and Notify Court and Opponent if You Wish to Appear
In many courts, the judge will read your documents and post a tentative ruling on the motion by 2:00 p.m. the court day before the hearing.
You can read the tentative ruling online For more information, see the Tentative Ruling Information page on the Superior Court’s website.
Review the tentative ruling closely. Since you are asking the court to set aside the default, you want your motion to be “GRANTED.” If not, it will be “DENIED.” Even if granted, read the tentative ruling carefully for other important details, such as if and when to serve and file your proposed Answer (or other response).
If you are satisfied with the tentative ruling, you do not need to do anything further. You won’t have to go to court unless ordered to appear in the tentative ruling or if the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the day before the hearing to request oral argument. If this occurs, you should attend the court hearing prepared to argue why your motion should be granted.
If you are not satisfied with the tentative ruling, you can present arguments before the judge. Call the court deparment your case will be heard the day before the hearing and inform the department clerk you want oral argument for your motion. You must also contact all opposing counsel and/or self-represented parties before 4:00 p.m. to inform them that you are requesting oral argument on the motion.
Step 9: Attend the Motion To Compel Hearing, if Necessary
If neither party calls the court and the opposing party to request oral argument, the court will adopt the tentative ruling as its order.
If you or the other party requests oral argument, you can attend in person or remotely via video or phone using the Zoom app. The tentative ruling will provide instructions on how to connect through Zoom.
Arrive or log into Zoom early, as other cases may be scheduled simultaneously. Enter the courtroom or Zoom waiting room and check in with the bailiff or clerk.
When your name is called, be prepared to speak and answer any questions from the judge. You will have only a few minutes. After both sides have spoken, the judge may issue a decision immediately or “take it under consideration” and mail the decision in a few days.
What Happens at the Motion Hearing?
Most motions are decided by the court based on the submitted paperwork, which includes your moving papers, the opposition papers from the other side, and any reply papers you might file. Due to the scheduling of multiple matters in a short period, limited discussion occurs in the courtroom. Therefore, ensure that your moving papers thoroughly address all legal and factual issues you want the court to consider. The courtroom discussion is called oral argument. Despite the term “argument,” it is conducted in an orderly and respectful manner, with the judge asking specific questions or inviting each side to present its position on particular issues.
The judge may rule on the motion at the hearing or take it under submission, meaning the decision will be made after further research or consideration and then mailed to you. Judges often issue tentative rulings before the hearing, providing a preliminary decision based on the submitted papers. The court may stick to this tentative ruling or modify it after the oral argument at the hearing.
By: Brad Nakase, Attorney
