When Must a Motion to Compel Be Filed?

While the Federal Rules of Civil Procedure are detailed and precise, there are gaps.

For example, the Rules do not specify when a spoliation motion must be filed.  That gap has been filled by common-law.  When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); Spoliation Motions Denied as Untimely – Another Wake-Up Call (Sept. 8, 2023); Another Spoliation Motion Denied as Untimely (Mar. 14, 2024).

The Federal Rules of Civil Procedure do not state when a motion to compel must be filed. Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D. 118, 134 (S.D. W. Va. 2009,); Wootten v. Virginia, 2015 WL 13658068, at *2 (W. D. Va. June 9, 2015).  For example, Fed.R.Civ.P. 37(a)(1) states only: “On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.”

There is a requirement of timely filing and that may be a trap for the unwary or a snare blocking sharp practice.  This blog is not intended as a law review article detailing all of the “ins and outs” of the requirement, which may be based on common law or local rules.

Instead, the blog presents a cautionary flag that a party contemplating a need to move to compel would be prudent to research the timing issue in the forum court.

Sometimes Local Rules fill the gap.  For example, in the District of Maryland, L.R. 104.8.a mandates filing within 30 days after receipt of the opponent’s response to the discovery request.

However, even in the absence of a rule, “the moving party must seek a Rule 37(a) order in a timely fashion.”  Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2285 (3d ed.).  Delay may weaken a motion and “timeliness is an important consideration.” Id.  Courts “will often deny Rule 37(a) motions because the moving party delayed too long.”  Id.

The common law gap-filling principle was recently restated in Glaston Corp. v. Salem Fabrication Technologies Grp., Inc., 2024 WL 3161621, at *7 (M.D. N. Car. June 25, 2024):

“Generally, a party must file a motion to compel before the close of discovery in order for that motion to be deemed timely.” Lane v. Lucent Techs., Inc., No. 1:04cv789, 2007 WL 2079879, at *3 (M.D.N.C. July 13, 2007) (collecting cases); see, e.g., Sager v. Standard Ins. Co., No. 5:08-cv-628, 2010 WL 2772433, at *1 (E.D.N.C. July 12, 2010) (denying motion to compel as “fatally defective,” noting that “[i]t is also significant that the motion appears to be untimely, as it was filed after the close of fact discovery”); In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 332 (N.D. Ill. 2005) (observing that “motions to compel filed after the close of discovery are almost always deemed untimely”). [emphasis added].

However, there are exceptions.  As recognized in Glaston:

Nevertheless, the “[C]ourt has discretion to consider an untimely motion to compel if the movant offers an acceptable explanation for the motion’s tardiness.” United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (brackets and internal quotation marks omitted).

Lack of prejudice due to delay may be a factor.  Alsawam v. Obama, 942 F.Supp.2d 6, 10 (D.D.C. 2013)(“While the Court recognizes that Petitioner could have made this request earlier,…  the Government has failed to identify any material prejudice that it would suffer by virtue of having to comply with a request for additional discovery, limited to portions of a single document, at this time.”).

Estoppel may also excuse delay.  Patrick v. PHH Mortg. Corp.,  298 F.R.D. 333, 337-38 (N.D. W. Va. 2014)(“Defendant contends that Local Rule of Civil Procedure 37.02(b) mandates that motions to compel are waived if not filed within thirty days after the discovery response or disclosure statement was due….In determining the timeliness of a motion to compel, the Court has discretion to examine the surrounding circumstances….  Upon reviewing the entire record and evidence, Magistrate Judge Seibert did not clearly err in finding that any delay in Plaintiffs’ counsel filing the motion to compel was the direct result of Defendant’s repeated assurances that he would provide additional documentation and supplemental responses.”); Marshall v. Univ. of Maryland Med. Ctr., 2018 WL 3727947, at *2 (D. Md. Aug. 6, 2018)(“Marshall made repeated assurances that she would supplement her allegedly deficient discovery responses….  Upon learning of Marshall’s changed position, UMMC filed its Motion on June 21, 2018, just twenty-seven (27) days later. Accordingly, UMMC’s Motion is not untimely, and the Court will reach the merits [of the motion to compel].”).

Under a local rule permitting delay caused by excusable  neglect “or by some action of the non-moving party,” delay due to good faith efforts to resolve the dispute may be excused. For example: “The serving party should not run to court when the answering party states it will prepare additional responses.”  Ayers v. Cont’l Cas. Co., 240 F.R.D. 216, 225 (N.D. W. Va. 2007).  “In short, the facts reveal a pattern of behavior by defense counsel in an effort to avoid bringing this matter before the Court. The Rules require and therefore the Court encourages such conduct. The delay in filing the Motion was due to negotiations with opposing counsel. Defense counsel should not be faulted for complying with the Rules. Therefore, the delay is excusable and the Motion to Compel is timely.”  Id.

However, “Courts seldom review untimely motions to compel when the recipient party consistently and adamantly refused to respond to the discovery requests, particularly when the requesting party easily could have filed a timely motion to compel.”  Wootten, 2015 WL 13658068, at *2.  “Courts are even less inclined to review such motions when the requesting party began its discovery with ‘unwarranted delay.’” Id.  “Given the history of discovery disputes between the two parties and the DMV’s repeated statements that it would not respond to these discovery requests, Wootten should have known to file the motion to compel earlier. Wootten’s failure to timely file this motion falls solely on her shoulders. Moreover, Wootten should have known the court’s unwillingness to reopen discovery.”  Id. at *2.

When operating in a gray area, additional caution may be prudent.  And, there is nothing that precludes a discussion of this topic in a Rule 26(f) conference of the parties and agreeing to a milestone for motions to compel as part of a discovery plan.

This blog was initially posted on  Electronic Discovery Reference Model.

UPDATE: KPH Healthcare Services, Inc. v. Mylan N.S., 2024 WL 3890162 (D. Kans. Aug. 20, 2024)(litigant spent 178 hours reviewing 10,752 entries in privilege log, but did not move to compel within 30 days as required by local rule. “Plaintiffs clearly were diligently reviewing the Mylan Defendants’ privilege log during the 30 days following its service on Plaintiffs, but they were not diligent in attempting to resolve issues regarding the Mylan Defendants’ privilege log because they did not initiate the meet and conferral process or request an extension of time ‘sufficiently in advance of the 30-day deadline.’ Thus, to promote Fed. R. Civ. P. Rule 1 judicial efficiency, cooperation, and timely resolution of disputes, the Court … finds that Plaintiffs were not diligent….  Nonetheless, the Court is sympathetic to Plaintiffs’ plight in the unique circumstances presented here. Given Plaintiffs’ good faith attempt to interpret the amendment to D. Kan. Rule 37.1(c) and their obvious good faith efforts to review the Mylan Defendants’ immense privilege log quickly and expeditiously, the Court, in its discretion, will not deny Plaintiffs’ motion to compel the Mylan Defendants to produce documents improperly withheld on the Mylan Defendants’ amended privilege log as untimely. Such a determination would be unjust under these circumstances, especially given the Mylan Defendants’ own lengthy delay in serving their privilege log and amended privilege log. The Court strongly cautions Plaintiffs that, moving forward, timely communication with opposing counsel and the Court regarding discovery disputes in accordance with amended D. Kan. Local Rule 37.1 is still necessary and imperative.”).

UPDATE: Bhatia v. Silvergate Bank, 2024 WL 3929880 (Aug. 23, 2024).  “Plaintiffs argue that the motion [to compel] was only filed after the thirty-day period because Defendants ‘waited until 31 days after they served their responses and objections to respond to Plaintiffs’ May 9 letter [regarding Plaintiffs’ RFPs].’…  Despite knowing that the RFPs had been pending for months and that there was a significant dispute regarding Defendants’ responses, Plaintiffs did not make any effort to address the dispute until June 17, 2024 when they merely requested to meet and confer regarding the responses…. Because Plaintiffs did not even begin the meet and confer process until after the filing deadline had passed and did not file the instant motion until July 26, 2024, the motion to compel is untimely…. Plaintiffs argue that they were waiting for a response to their May 9, 2024 letter before meeting and conferring….  This argument is not persuasive….  Based upon these facts and because Plaintiffs failed to even request a meet and confer until a week after the deadline for filing a motion to compel, Plaintiffs’ motion to compel is untimely and Plaintiffs have not established due diligence or excusable neglect.”