Do the courts or judges in your jurisdiction have specific local rules or practices regarding discovery motions? Whether you are out-of-state counsel or local counsel, make sure you review all court rules of procedure or practice, including chamber-specific rules. A magistrate judge in the U.S. District Court Southern District of California for the has a specific civil-chamber rule regarding the timing of discovery motions:
Any motion related to discovery disputes must be filed no later than thirty (30) days after the date upon which the event giving rise to the dispute occurred. For oral discovery, the event giving rise to the dispute is the completion of the transcript of the relevant portion of the deposition. For written discovery, the event giving rise to the dispute is the date of service of the response, not the date on which counsel reach an impasse in meet and confer efforts.
Wi-Lan, Inc. v. LG Electronics, Inc., 17cv0358-BEN-MDD (S.D. Cal. Feb. 6, 2018). In that case, the defendants agreed to supplement their responses to the requests for production but did not do so. The defendants, however, did supplement certain interrogatory responses. The plaintiff filed the discovery motion within 30 days of the latest supplement, arguing that the dispute arose when the defendants failed to continue to supplement the responses. The court denied the motion to compel as untimely, ruling that the “30-day period cannot be construed to restart with each supplemental production or response.” Nevertheless, the court determined that the defendants’ responses to the requests for production were deficient, and ordered the defendants to identify whether they were withholding any responsive documents and to identify the objection for which they are withholding the documents. The court further ordered that if the defendants intended to continue to produce documents, they needed to identify a reasonable date at which the documents would be produced.
This case demonstrates that attorneys should pay attention and comply with specific court/judge requirements with respect to discovery motion practice. Failure to do so could be risky, as the attorney may lose the discovery motion or a claim for fees based on a technicality.
Tracy A. DiFillippo is with Armstrong Teasdale LLP in Las Vegas, Nevada.