During a lawsuit, each side can request information and documents from each other. This process, called “discovery,” usually does not involve the judge. However, if one side refuses to comply with a Discovery request, then the party who made the request can file a Motion to Compel with the court. In order to oppose the motion, you should identify your reasons for not complying and draft a Motion in Opposition.

EditSteps

EditDrafting Your Motion in Opposition

1. Read the motion to compel. You should receive a copy of the other side’s motion that was filed with the court. This motion should identify the discovery you haven’t produced and explain why the other side is entitled to it.
   • As soon as you receive this motion, read it carefully. You need to fully understand the arguments made.
   • If you have a lawyer, then the motion was served on your lawyer. Ask for a copy.
2. Check your local rules for the deadline. Your court’s local rules should tell you how much time you have to respond to the motion and any required information that you must include in your motion in opposition.^[1] Your local rules should be posted to the court’s website.
3. Identify your reasons for not complying. You need to give the court a reason to deny the other side’s motion to compel. There are many different reasons you could give. Take out your Response to the discovery request. You should have identified reasons in your Response for why you weren’t turning over certain information. Depending on your circumstances, you could claim the following:
   • You have actually complied with the discovery request. For example, the other side might have served requests for production of emails relating to a topic.^[2] You might have provided all relevant emails.
   • The other side isn’t entitled to the discovery. A party can only request discovery if it is relevant to the lawsuit. If the requested information wasn’t relevant, then you might not feel they are entitled to it.
   • The discovery request was too vague or ambiguous. You can’t respond to a request that you don’t understand.
   • The document is privileged. There are many privileges, but the attorney-client privilege is most important. If you made a confidential communication to your lawyer for the purposes of obtaining legal advice, then the communication is protected from disclosure.^[3]
4. Format your document. To begin drafting your Motion in Opposition, you should open up a blank word processing document. Set the font to a legible size and style. Generally, Times New Roman or Arial 14-point font works best. Make sure the margin is at least one inch.^[4]
   • Check your previous documents filed in the case and follow the formatting. You want your motion to look like other documents filed in the case.
5. Insert the caption. The caption contains the name of the court, the names of each party, and the case number. It may also contain the judge’s name. You can get all of this information from any document filed in your case.
   • Remember a title. You can title your motion “Defendant’s Response in Opposition to Plaintiff’s Motion to Compel Discovery and For Sanctions” or something similar.^[5]
6. Add your introduction. In the introduction, identify yourself and state that you oppose the motion to compel. You can also briefly state your reasons why you oppose the motion to compel.^[6]
   • Sample language could read: “Defendant opposes Plaintiff’s Motion for an Order To Compel on the grounds that (1) the documents requested are not relevant to the lawsuit and (2) certain relevant documents are protected from disclosure by the attorney-client privilege.”
7. Make your argument. In the body of your motion, you need to explain why you shouldn’t have to comply with the discovery request. Make sure to support your argument with citations to the Rules of Civil Procedure (which govern discovery) and relevant court opinions as well.^[7]
   • For example, if you are refusing to turn documents over because they are not relevant, then remind the court of the rules regarding relevancy: “Rule 26(b)(1) limits discovery to any ‘non-privileged matter that is relevant to any party’s claim or defense.’ If a party wants broader discovery, then it must show ‘good cause’ to support the request. Plaintiff has not shown any good cause in this case for requesting the past three years of Defendant’s bank records.”
8. Add a conclusion. The conclusion can be brief. Simply repeat what you want the court to do. For example, you could write: “For the foregoing reasons, Defendant respectfully requests that this Court deny Plaintiff’s Motion To Compel.”^[8]
9. Sign the motion. Beneath the conclusion, add the words “Respectfully Submitted” and then insert a signature block underneath. The signature block should contain your name and contact information. Also add a date.^[9]
10. Obtain supporting declarations, if necessary. You can’t make factual allegations in your motion unless they are supported by evidence. For example, you might be claiming that some documents are privileged because you sent them to your lawyer. In this situation, your lawyer will have to write a declaration identifying him or herself as your attorney.
    • See Write an Affidavit for more information.
11. Include a certificate of service. You need to tell the court that you served a copy of your motion. Be sure to explain the method of service and the date service was made.
    • Put the certificate on a separate sheet of paper titled “Certificate of Service” in all caps, bold.
    • Sample language could read: “I hereby certify that on this 22nd day of April, 2016, I caused a copy of the foregoing Motion in Opposition to be served by first-class mail, postage prepaid, on counsel for plaintiff as follows,” and then insert the name and address of counsel.^[10]
    • Sign your certificate.

EditFile the Motion

1. Make copies. Once you have completed your motion in opposition, you should make several copies of the complete motion (and any attachments or declarations). Make at least one copy for your records.
2. Send a copy to the other side. Be sure to send your copy using the method identified in your certificate of service. Generally, you can mail a copy using first class mail.^[11] Be sure to give the other side a copy of the motion sufficiently in advance of the hearing date.
   • If there are additional parties in your lawsuit, then you can send them courtesy copies. For example, you might be one of two defendants. Send the other defendant a copy of your motion.
3. File the original with the court. Take your copies and the original to the clerk and ask to file the original. You generally do not need to pay a fee to file your opposition motion.^[12]

EditAttending a Hearing

1. Prepare for the hearing. The other side should have scheduled a hearing as soon as he or she filed the motion to compel. You should have received notice of the hearing date with the motion to compel. To prepare, you should do the following:
   • Read all of the motions. After you filed your opposition, the other side might have filed a “reply” motion.^[13] If so, there are now three motions. Reread them all closely.
   • Sit in on a discovery hearing. If you have never argued a motion before the judge, you should try to sit in on a hearing. Pay attention to how much time the judge gives each side to speak and listen to the questions the judge asks.
2. Listen to the other side’s argument. Because the other side brought the motion to compel, they will argue first. Stand quietly and listen to what they say. Write down anything you think is wrong, so that you can correct the error when you get to speak.
   • Also listen to the questions the judge asks. If the judge is more interested in one issue than another, you can lead off with that issue when it is your turn to speak.
3. Argue your motion. Introduce yourself and who you represent. If you don’t think the other side properly gave the background of the dispute, then quickly clarify, providing necessary detail before beginning your argument.
   • You should limit your argument to your strongest two or three points. There probably won’t be time to argue much more. Also leave time to correct any misimpression created by the other side.
   • If the judge asks questions, then stand quietly and don’t interrupt the judge. Also immediately answer the judge’s question.
   • Always call the judge “Your Honor.”^[14]
4. Wait for the decision. After hearing argument, the judge should issue a decision from the bench. If you disagree, then you generally can’t appeal until the case is completed. However, if the motion to compel affects a substantial right, then you might be able to appeal immediately.^[15]
   • For example, if you are a journalist, then you might have a statutory privilege not to be compelled to release the sources of your information. If the court tries to compel disclosure, then you might be able to bring an immediate appeal.

EditSources and Citations

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