To file a motion to compel, you confirm the other side’s discovery response is genuinely late or deficient under Federal Rule of Civil Procedure 37, hold a good-faith meet-and-confer, then file a motion supported by a certification of those efforts, copies of the requests and responses, a memorandum of law, and a proposed order, all before the discovery-motion cutoff in your scheduling order.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The steps below walk through each of those in order.
Confirm You Have Grounds Under Rule 37
Rule 37(a)(3)(B) limits motions to compel to four situations: a deponent refuses to answer a question at a deposition, a corporation fails to designate a witness for a deposition, a party fails to answer an interrogatory, or a party fails to produce documents or allow inspection.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions You can also move to compel initial disclosures a party never made, such as the names of witnesses or copies of relevant documents.
Before you conclude the response is late, count carefully. In federal court, the responding party has 30 days after service to answer interrogatories, respond to document requests, or reply to requests for admission.2Legal Information Institute. Federal Rules of Civil Procedure Rule 33 – Interrogatories to Parties3Legal Information Institute. Federal Rules of Civil Procedure Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes The parties can agree to a longer period, and the court can shorten it. Once the deadline passes with no response, an evasive answer, or boilerplate objections, your compel clock starts running alongside your meet-and-confer duty.
One boundary worth flagging. If the missing response is to requests for admission, a motion to compel is usually the wrong tool. Silence past 30 days deems the matters admitted automatically, which is often stronger than any order you would have gotten.4Legal Information Institute. a href=”https://www.law.cornell.edu/rules/frcp/rule_36″ target=”_blank” rel=”noopener”>Federal Rules of Civil Procedure Rule 36 – Requests for Admission
Meet and Confer Before You File
Rule 37 requires the motion to include a certification that you tried in good faith to obtain the discovery without court involvement.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions A single demand letter is rarely enough. Judges want to see an actual conversation covering the specific items in dispute, why you say the information is relevant, and the objections the other side is asserting.
Local rules control the format. Some courts require the conference to happen by phone or in person; others accept detailed correspondence. A number of courts also require the parties to prepare a joint statement summarizing the dispute and each position before any motion goes on the docket. Check your district’s rules and the assigned judge’s standing orders before you pick up the phone.
Then write the certification while the details are fresh. Include the dates, format, participants, and substance of your efforts. If opposing counsel refused to confer, document that refusal in the same detail. The certification is what gets attached to the motion as proof you exhausted informal options.
Make Sure What You’re Asking For Is Within Scope
Federal courts limit discovery to information relevant to any party’s claim or defense and proportional to the needs of the case.5Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery Motions fall apart at this step more than any other. A judge is not going to order ten years of company-wide email based on a hunch.
Proportionality analysis weighs the importance of the issues, the amount in controversy, the parties’ relative access to the information, their resources, the discovery’s importance to resolving the case, and whether the burden outweighs the likely benefit. Address these factors in your motion rather than waiting for the opposition to raise them. Explain why the information matters to specific claims or defenses and why the burden is reasonable given the stakes. If the request touches electronically stored information from company servers, expect cost of collection and review to become the centerpiece of the fight, and be ready to propose narrower alternatives you have already considered and rejected for stated reasons.
Draft the Motion Package
The motion itself asks the court for an order compelling specific discovery. Keep it narrow to the items still in dispute after the meet-and-confer. Alongside it, most courts expect a memorandum of points and authorities laying out the legal basis for the discovery and why the opposing party’s refusal is unjustified.
Attach the exhibits the judge needs to see the full picture: the original discovery requests, the deficient or missing responses, and the meet-and-confer correspondence. Many courts also require a separate statement that isolates each disputed item, quotes the response received, and explains why it is inadequate. This format requirement varies widely by local rule, and filing without one where it is required can get the motion rejected on procedural grounds alone.
Finish with a proposed order. Identify each document category, interrogatory, or deposition topic you want compelled, and propose a specific compliance deadline. A well-drafted proposed order saves the judge work and signals that you know exactly what relief you are asking for.
If the Dispute Involves Privilege
When the opposing party withheld documents on attorney-client privilege or work-product grounds, they were required to state the privilege and describe the withheld documents in enough detail for you to evaluate the claim, usually through a privilege log listing each document’s date, author, recipients, and the specific privilege asserted.5Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery A missing or vague log is itself a solid basis for a motion. If you believe the privilege is being asserted incorrectly on identifiable entries, ask the judge to review those specific documents privately. Do not ask for bulk in camera review of the whole log.
File on Time and Serve Properly
Most federal courts require electronic filing through CM/ECF. Filing fees for discovery motions are minimal or nonexistent in most jurisdictions.
The deadline is the part people miss. Rule 37 itself sets no specific filing deadline.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Your cutoff usually comes from the court’s scheduling order, which sets when discovery and discovery-related motions must be complete.6Legal Information Institute. Federal Rules of Civil Procedure Rule 16 – Pretrial Conferences; Scheduling; Management Some judges impose their own deadlines through standing orders, and some local rules require filing within a set number of days after the dispute arises. Check the scheduling order, the local rules, and the judge’s standing orders as soon as the dispute surfaces. Waiting can support a waiver argument even where no hard deadline appears.
Serve the complete package on the opposing party at the same time you file. Electronic filing usually generates notice automatically, but confirm that your court does not require additional service by mail or hand delivery, and file a proof of service showing date and method.
What Happens After You File
The opposing party gets a chance to respond. Federal rules set no universal deadline for opposition briefs on discovery motions; most districts handle it through local rules, and 14 days is common. Expect arguments that the request is overbroad or unduly burdensome, that the information is privileged or work product, that the material has already been produced or is publicly available, or that your meet-and-confer effort was inadequate. The opposition may also seek a protective order under Rule 26(c), which requires the moving party to show good cause for limiting or blocking the discovery.5Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
You typically get a reply. Not every court allows one on discovery motions, so check the local rules before counting on it. Many courts then set oral argument, though some judges decide on the papers. If a hearing is set, bring your exhibits and be ready to walk through the timeline. Expect pointed questions on proportionality, relevance, and whether the parties genuinely tried to work things out.
What You Stand to Win or Lose in Fees
Rule 37’s fee-shifting is what gives the motion teeth. If the motion is granted, the court must order the losing side to pay your reasonable expenses, including attorney’s fees, unless you filed without trying to resolve the dispute first, the opposing position was substantially justified, or other circumstances make an award unjust.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The same rule applies if the other side finally produces the discovery after you file but before the hearing. You still recover the cost of bringing the motion.
The reverse is also true. If your motion is denied, the court must order you to pay the opposing party’s expenses in fighting it, unless your position was substantially justified or an award would be unjust.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions A weak motion is not a free swing.
When the Other Side Served Nothing at All
Rule 37(d) creates a separate track when a party completely ignores discovery obligations, such as failing to appear for their own deposition, serving no interrogatory answers, or making no response to document requests.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions In that situation, the court can impose sanctions directly without requiring you to obtain a compel order first, and the nonresponsive party cannot defend by arguing the requests were objectionable unless they had a pending motion for a protective order at the time. You still must certify a good-faith meet-and-confer effort.
Strategically, this changes what you file. If the other side served nothing, consider going straight to a Rule 37(d) motion for sanctions rather than a routine motion to compel. It puts you in a stronger position and skips a step the responding party has already forfeited.