The motion to compel: confer first, say so in the motion, and expect fees to follow the result

Motions to compel look like they turn on whether the discovery was proper. In practice they turn on two procedural things that have nothing to do with the merits: whether you conferred first, and whether you said so in the motion.

Get those wrong and the motion is denied without anyone reaching the objection you were complaining about.

The certification requirement

FRCP 37(a)(1) states the model that most states follow:

In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Three requirements in one sentence:

• notice to other parties and all affected persons — which includes a non-party whose discovery is at issue;
• a good-faith conferral, or an attempt at one; and
• a certification of that conferral inside the motion itself.

The third is the one people miss. Conferring and then not saying so does not satisfy the rule. The certification is part of the motion.

State analogues use nearly identical language. Michigan's MCR 2.309(C) requires that "The motion must state that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action", and New Jersey's R. 4:23-5(a)(3) requires all supporting affidavits to include "a representation of prior consultation with or notice to opposing counsel or pro se party."

Which court hears it

FRCP 37(a)(2) splits it, and the split is easy to get wrong with non-party subpoenas:

Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.

Party discovery goes to the case court. Non-party discovery goes to the court where the discovery is happening — which may be a different court in a different state.

Evasive answers count as no answer

Most systems say this expressly, because otherwise the rule would reward a technically responsive non-answer. New Jersey's R. 4:23-1(b) is typical:

For the purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

Michigan makes the same point by allowing a motion "with respect to an objection to or other failure to answer", and Ohio's Civ.R. 36(A)(3) lets a court treat a non-compliant admission response as an admission outright.

So the target of a motion to compel is not only silence. It is also the answer that says nothing.

Fees follow the result — in both directions

This is the part that should shape whether you file at all. New Jersey's R. 4:23-1(c) states the common structure:

If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party opposing 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 expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Read the verbs. "Shall" in both directions, with an escape only where the losing position was substantially justified or an award would be unjust. A weak motion to compel is not free.

What to do before filing

Building the motion

A motion that survives its own procedure usually has five parts:

1. The certification — that you conferred in good faith or attempted to, and what happened.
2. The requests at issue, quoted, with the responses received.
3. Why each response is deficient — evasive, incomplete, an objection without reasons, or nothing at all.
4. Proof of service of the underlying discovery, where the complaint is that nothing came. Michigan's MCR 2.309(C) requires it expressly: "If the motion is based on the failure to serve answers, proof of service of the interrogatories must be filed with the motion."
5. A proposed order with a compliance date. New Jersey's R. 4:23-5(c) requires it — "An order granting a motion to compel shall specify the date by which compliance is required" — and that date is what any later sanctions motion is built on.

What comes after

A motion to compel is rarely the end. In most systems it is step one of an escalation:

• compel, then
• sanctions for failing to comply with the order, then
• dismissal, suppression, preclusion or default in the extreme case.

Some states compress that. New Jersey allows a party to skip straight to dismissal without prejudice under R. 4:23-5(a)(1) — see compelling discovery in New Jersey, where the escalation to dismissal with prejudice runs on a 60-day clock and restoration costs $100, $300, or more.

Timing traps

Two worth checking in any jurisdiction:

Discovery motions may have to be heard, not merely filed, before a cutoff. New Jersey's R. 4:24-2(a) requires motions to compel and for discovery sanctions to be returnable before the discovery period ends.

Some states set a hard clock from the response. California's motion-to-compel deadline is the best known example — see California's 45-day motion to compel.

A short checklist

1. Confer first, in good faith, about the specific requests.
2. Put the certification in the motion. Conferring without certifying does not satisfy the rule.
3. Check which court — the case court for a party, the discovery court for a non-party.
4. Give notice to all affected persons, including non-parties.
5. Attach proof of service of the underlying discovery if the complaint is that nothing arrived.
6. Quote the request and the response for each item in dispute.
7. Treat evasive and incomplete answers as failures to answer — and say which they are.
8. Ask for a compliance date in the proposed order.
9. Narrow your demands before filing. Partial success usually means apportioned costs.
10. Check the deadline — some jurisdictions run a clock from the response, and some require the motion to be heard before the discovery cutoff.

Where these rules live

• FRCP 26 — Duty to Disclose; General Provisions Governing Discovery
• FRCP 37 — Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
• MCR 2.309 — Interrogatories to Parties
• MCR 2.313 — Failure to Provide or to Preserve Discovery
• N.J. Ct. R. 4:23-1 — Motion for order compelling discovery
• N.J. Ct. R. 4:23-5 — Failure to Make Discovery
• Ohio Civ.R. 37 — Failure to Make Discovery: Sanctions
• Ill. S. Ct. R. 219 — Consequences of Refusal to Comply

This page explains the shape these rules take across jurisdictions. It isn't legal advice, and the governing rule in your court — including any local rule on conferral or page limits — should be read before you file.