Tuesday, December 8, 2015

Denied Motion to Compel

Discovery can get painstaking at times.  Sometimes attorneys get overzealous on filing a motion to compel.  There are penalties if a motion to compel is denied.  Rule 37 provides as follows:

Rule 37(a)(4) of the Mississippi Rules of Civil Procedure provides that:

"If the motion is denied, the court shall, after opportunity for hearing, require the moving party of the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expense unjust."

Under the rule, the awarding of attorney's fees is a double edged sword where absent some justification or other circumstances, someone is getting attorney's fees.  This is one reason judges expect the attorney's to work out these issues among themselves.  This is also why it is important to have a paper trail of the steps taken to resolve it so the court can see who is unreasonable.  Good rule of thumb is to never write sometime to opposing counsel you do not want the court to review.   

1 comment:

  1. If only judges enforced the rules it would cut out a lot of the antics we see with discovery. I can recall getting fees once. A few other times I have gotten other remedies (including dismissal) but since the rules make an award mandatory in almost all cases the enforcement rate is dismal.