Bringing or Opposing a Motion to Compel Discovery: A Practical Guide

Summary. This guide takes a federal litigator step by step through bringing a motion to compel discovery and, separately, through opposing one. It begins with the decisions to make before writing anything: whether the dispute is worth a motion, who the target is, whether a prior order exists, what the local rules and the judge's individual practices require, and how the discovery schedule constrains timing. The requesting party's steps cover diagnosing each deficiency, writing the deficiency letter, running and recording the conference, choosing between a joint letter and a formal motion, drafting the papers and supporting declarations, asking for expenses under Rule 37(a)(5), and enforcing the resulting order. The responding party's steps cover triage, curing what can be cured before filing, building burden and proportionality evidence, cross-moving for a protective order, limiting fee exposure, and objecting to a magistrate judge's order under Rule 72(a). A section on nonparty motions under Rule 45, a timeline and effort table, an extended worked example, common mistakes, an FAQ, and practical takeaways complete the guide.

The general counsel of a regional freight broker forwards an email with one line: "Do we really have to give them every text message our dispatchers sent for three years?" Attached is a draft motion to compel from the other side, a software vendor the company is suing over a failed dispatch platform. The motion is 22 pages long. It quotes the company's own discovery responses back at it, including the phrase "Plaintiff objects to this Request as overly broad and unduly burdensome" eighteen times. It asks for an order compelling production within 14 days and for the vendor's attorney's fees.

Down the hall, the company's outside litigator is reading the same draft and thinking about something else: the vendor has still not produced the source code change log it promised two months ago. Both sides have a motion to compel problem. One needs to bring a motion; the other needs to defend against one. The procedures overlap, and the lawyer who understands both sides of the process does a better job at each.

This guide is organized that way. After the threshold decisions, Part A gives the requesting party's steps and Part B gives the responding party's steps, followed by a short section on nonparties. The doctrine behind each step, including the Supreme Court cases on sanctions and the circuit tests for default and dismissal, is analyzed in Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment.

The short answer

• Most disputes should end before a motion. A specific deficiency letter and a real conversation resolve the majority of discovery disputes, and the federal rule requires the attempt: Fed. R. Civ. P. 37(a)(1) demands a certification of good-faith conferral.
• Local practice decides the form. Many judges want a short joint letter or a pre-motion conference, not a full motion. Read the local rules, the judge's individual practices, and the scheduling order before drafting.
• Specificity wins on both sides. Movants win by going request by request and explaining why each response fails under Rule 37(a)(4). Opponents win by showing, with evidence, what compliance would cost and why the request exceeds what the case needs under Fed. R. Civ. P. 26(b)(1).
• Fees are presumptive. The loser pays the winner's reasonable expenses under Rule 37(a)(5) unless its position was substantially justified or an award would be unjust. Producing after the motion is filed does not avoid fees; producing before it does.
• The order is the asset. An order compelling specific discovery by a specific date, ideally with a warning, is the foundation for sanctions under Rule 37(b) if the opponent does not comply.
• Magistrate judge rulings have a 14-day fuse. Objections under Fed. R. Civ. P. 72(a) must be filed within 14 days, and review is deferential.
• Nonparties are different. Enforcement goes through Rule 45 in the court where compliance is required, and the order must protect the nonparty from significant expense.

Before you start: five decisions

1. Is this dispute worth a motion?

A motion to compel costs money and judicial goodwill. Ask three questions. Does the missing discovery matter to a claim, a defense, or a pending motion? Can you get the same information more cheaply, from a deposition, a nonparty, or public records? And will a motion change the opponent's behavior for the rest of the case? A focused motion on three important disputes is worth more than a sprawling motion on forty minor ones.

2. Who is the target?

3. Is there already an order?

If the opponent has already violated a court order, the motion is for sanctions under Rule 37(b), not to compel. If the opponent served nothing at all in response to interrogatories or document requests, or did not appear for its own deposition, Rule 37(d) allows sanctions without a prior order. Everything else starts with a Rule 37(a) motion. The checklist version of this triage is in the Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist.

4. What do the local rules and the judge require?

Federal judges vary more on discovery procedure than on almost anything else. Before drafting, collect and read:

• The district's local civil rules on discovery motions, which Fed. R. Civ. P. 83 authorizes. Some require the motion to quote each request and response verbatim; some require the conference to be in person or by video; some set deadlines tied to the discovery cutoff.
• The individual practices of the assigned district judge and magistrate judge. Many require a joint letter of limited length or a telephone conference before any motion.
• The scheduling order. Fed. R. Civ. P. 16(b)(3)(B)(v) allows it to require a conference with the court before a discovery motion, and many scheduling orders do.
• Any referral order sending discovery to the magistrate judge under 28 U.S.C. § 636(b)(1)(A).
• Any stipulated ESI protocol or protective order, which may contain its own dispute procedure.

5. How much time is left?

Rule 37 sets no deadline, but courts deny motions brought too late, especially after the discovery cutoff or long after the movant learned of the problem. Count backward from the cutoff: the conference, the joint letter or motion, the briefing schedule, the ruling, and the compliance period must all fit before the close of discovery, with time left for follow-up depositions. If they do not, ask for an extension of the discovery period under Rule 16(b)(4) at the same time, and remember that stipulated extensions that interfere with court deadlines need court approval under Fed. R. Civ. P. 29(b).

Part A: Bringing a motion to compel

Step 1: Diagnose each deficiency

What to do. Build a chart. For every request, interrogatory, and disclosure at issue, record the request, the response, the objection, what has been produced, and the specific defect. Classify the defect using the categories courts recognize:

Why. The diagnosis becomes the deficiency letter, the conference agenda, and the motion. A chart also forces the movant to drop weak complaints before the judge sees them.

Authority. Rule 37(a)(4) makes an evasive or incomplete response a failure. The Third Circuit has long held that the mere statement that a request is "overly broad, burdensome, oppressive and irrelevant" is not an adequate objection, Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982). Since 2015, objections to document requests must state whether anything is being withheld, a requirement enforced in Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017) (Peck, M.J.), and in Liguria Foods, Inc. v. Griffith Laboratories, Inc., 320 F.R.D. 168 (N.D. Iowa 2017).

Pitfalls. Do not treat a responding party's reasonable narrowing as a deficiency. If the response says "Defendant will produce documents from 2021 to the present and is withholding earlier documents on the basis of its temporal objection," that response complies with Rule 34(b)(2)(C); the dispute is about scope, and the motion should argue scope.

Timing. Within a week of receiving responses.

Step 2: Send a specific deficiency letter

What to do. Write a letter that (a) identifies each deficient response by number, (b) explains the defect and the governing rule in a sentence or two, (c) proposes a compromise where one exists, such as narrower custodians, dates, or search terms, (d) asks for a conference on specific dates, and (e) sets a reasonable date for a response. Attach the chart if it is long. A template is in the Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions.

Why. The letter is the first exhibit to the eventual motion. Judges read it to decide who was reasonable. A letter that proposes compromises makes the movant look reasonable and makes the opponent's refusal look like obstruction.

Authority. Rule 37(a)(1) and the cooperation principle in Fed. R. Civ. P. 1, which the 2015 amendments extended to the parties.

Pitfalls. Avoid rhetoric. Phrases like "your clients' blatant obstruction" read poorly when attached to a motion. Do not threaten sanctions in the first letter; mention that you will seek expenses under Rule 37(a)(5) if a motion becomes necessary, which is a statement of the rule, not a threat.

Timing. Allow 7 to 14 days for a response, depending on the volume of issues and the time left in discovery.

Step 3: Meet and confer, and record it

What to do. Hold a live conference by telephone or video (or in person if local rules require it). Prepare an agenda that tracks the deficiency chart. During the call, take notes of each side's position on each item. Within a day, send a confirming email that lists what was agreed, what remains disputed, and any deadlines. Keep a running log with dates, participants, the method of contact, items discussed, and outcomes.

Why. The certification required by Rule 37(a)(1) must describe a good-faith effort, and judges increasingly ask for details. A log and confirming emails turn the certification from a conclusion into evidence. They also lock in commitments: if opposing counsel agreed on the call to produce by a certain date, the confirming email is the best proof.

Authority. In Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996), the court explained that good faith requires a genuine attempt to resolve the dispute through a two-way discussion, not merely an exchange of demands. The rule also bars a fee award to a movant who filed "before attempting in good faith to obtain the disclosure or discovery without court action," Rule 37(a)(5)(A)(i).

Pitfalls. A single email exchange rarely suffices. Neither does a call in which one side reads its letter aloud. If opposing counsel will not participate, document every attempt (dates, times, methods, messages left) so the certification can say that the movant "attempted to confer." Do not record calls without consent; beyond the courtesy problem, some states require all-party consent.

Timing. Most disputes require one or two conferences. Set a deadline for the opponent's final position, and move promptly once it passes.

Step 4: Choose the procedure

What to do. Based on the local rules and the judge's practices, decide which of these the dispute requires:

Why. A motion in the wrong form is often denied without prejudice, costing weeks. A joint letter, where required, also tends to produce a faster decision, often at a short conference, and gives the judge the dispute in a form that is easy to resolve.

Authority. Rule 83 and Rule 16(b)(3)(B)(v). For general motion practice, see Fed. R. Civ. P. 7(b), which requires a motion to state with particularity the grounds and the relief sought.

Pitfalls. A joint letter is a shared document. Agree on a process for exchanging drafts, set deadlines for each side's portion, and make sure the letter goes to the court even if the other side is late. Many judges' practices explain what to do if one side will not cooperate.

Step 5: Draft the papers

What to do. Whatever the form, a persuasive submission has five parts:

1. An introduction that states in two or three sentences what discovery is missing, why it matters, and what order is sought.
2. A background section with the procedural history of the requests, the responses, the deficiency letter, and each conference, with dates. Attach the requests, responses, letters, and log as exhibits.
3. The disputes, request by request. For each, quote the request and response (if local rules require it, verbatim), explain why the information is relevant and proportional under Rule 26(b)(1), and explain why the response fails under Rule 37(a)(4), 33(b)(4), or 34(b)(2)(B)-(C). Group similar requests to avoid repetition.
4. The legal standard, stated briefly. Judges know Rule 26(b)(1) and Rule 37(a). Spend words on the application, not the standard.
5. The relief. Ask for a specific order: complete responses within 14 days, production by a date certain, an amended Rule 34 response stating what is withheld, a privilege log by a date, objections deemed waived where untimely, and expenses under Rule 37(a)(5). Attach a proposed order.

Why. Judges decide discovery disputes quickly and often from the bench. Papers that let the judge see each dispute, its importance, and the specific fix in a few minutes get better results.

Authority. On waiver for untimely objections, Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992). On the certification duties of the responding party's counsel, Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), which ties boilerplate objections to the reasonable-inquiry requirement of Fed. R. Civ. P. 26(g). On privilege logs, Burlington Northern & Santa Fe Railway Co. v. United States District Court, 408 F.3d 1142 (9th Cir. 2005) rejects automatic waiver for a late log but treats boilerplate privilege assertions as insufficient.

Pitfalls. Do not overreach on relevance. The pre-2015 phrase "reasonably calculated to lead to the discovery of admissible evidence" was deleted from Rule 26(b)(1), and judges notice when a brief still relies on it. Do not ask for sanctions beyond expenses on a first motion unless the conduct is egregious; the court will want to see an order violated before it moves up the ladder.

Timing. A joint letter takes days; a formal motion with exhibits takes one to two weeks of drafting. Note the response and reply periods in the local rules, and calculate them using Fed. R. Civ. P. 6.

Step 6: Build the supporting record

What to do. Prepare a short attorney declaration that authenticates the requests, responses, correspondence, and log, and describes each conference (date, method, participants, issues, results). If proportionality is disputed, consider a short declaration from the client or an expert explaining why the information matters, such as why a damages theory depends on particular transactional data. Discovery papers are not filed with the court until used, Fed. R. Civ. P. 5(d)(1)(A), so the motion must attach what it relies on.

Why. The court cannot rule on responses it has not seen, and many judges will not credit factual assertions in a brief without a declaration.

Pitfalls. File confidential exhibits in accordance with the protective order and the sealing rules. Over-designated documents attached to a motion are a common source of sealing disputes; see Negotiating a Protective Order and Filing Under Seal: A Practical Guide.

Step 7: Request expenses

What to do. Ask for reasonable expenses, including attorney's fees, under Rule 37(a)(5)(A). Quote the mandatory language. Explain why none of the three exceptions applies: you conferred in good faith, the opponent's position was not substantially justified, and no circumstances make an award unjust. Ask the court to set a schedule for a fee declaration, or include one if local practice expects it.

Why. Fee requests change incentives for the rest of the case. A party that has paid for one motion is more careful in its next response.

Authority. The Supreme Court defined "substantially justified" as justified to a degree that could satisfy a reasonable person, satisfied where there is a genuine dispute, Pierce v. Underwood, 487 U.S. 552 (1988). The Eleventh Circuit applies the same formulation to discovery: substantially justified "means that reasonable people could differ as to the appropriateness of the contested action," Maddow v. Procter & Gamble Co., 107 F.3d 846 (11th Cir. 1997). The Seventh Circuit describes the rule's premise as "loser pays," Rickels v. City of South Bend, 33 F.3d 785 (7th Cir. 1994).

Pitfalls. The rule requires "an opportunity to be heard" before fees are imposed. Briefing usually satisfies it, but if the court rules from the bench, ask for a schedule. Do not ask for fees for the meet-and-confer process itself unless your circuit allows them; many courts exclude that time because the rule requires the conference regardless.

Step 8: Prove the fee amount

What to do. When the court invites it, file a fee declaration with contemporaneous time entries limited to work caused by the failure (drafting the motion, the reply, the hearing), the timekeepers' qualifications, the hourly rates with evidence of the local market, and any reductions you have already made for duplication or excess.

Authority. The lodestar method, Hensley v. Eckerhart, 461 U.S. 424 (1983), with rates based on prevailing market rates in the relevant community, Blum v. Stenson, 465 U.S. 886 (1984). Limit the request to fees caused by the misconduct, the principle the Court applied to inherent-power sanctions in Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017). The court may use reasonable estimates rather than auditing every entry, Fox v. Vice, 563 U.S. 826 (2011).

Pitfalls. Block billing, vague entries ("review file"), and time for unrelated work draw reductions. A modest, well-supported request often produces a better net result than an aggressive one. Fee petition practice generally is covered in the Attorney Fee Petition and Bill of Costs Checklist: A Practical Checklist.

Step 9: Enforce the order

What to do. Calendar every compliance date. When the deadline arrives, review what was produced against the order, item by item. If compliance is incomplete, send a short letter identifying the shortfall and confer again. If the violation is clear, move for sanctions under Rule 37(b)(2)(A), asking for a sanction specifically related to the withheld discovery, such as an order that designated facts be taken as established, preclusion of evidence, or, in egregious cases, striking pleadings, default, or dismissal, plus mandatory expenses under Rule 37(b)(2)(C).

Authority. Sanctions must be "just" and "specifically related to the particular 'claim' which was at issue in the order to provide discovery," Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982). Terminating sanctions serve deterrence as well as remedy, National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976), but are improper where noncompliance results from inability rather than "willfulness, bad faith, or any fault," Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958). A sanction must rest on an order actually directed to the party sanctioned, Daval Steel Products v. M/V Fakredine, 951 F.2d 1357 (2d Cir. 1991).

Pitfalls. Lost ESI is governed by Rule 37(e), not Rule 37(b), and requires its own showings; see Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case. Undisclosed witnesses and documents raise preclusion under Rule 37(c)(1); see Rule 37(c)(1) Preclusion of Undisclosed Evidence: A Practical Guide. If the case may end in default, plan the damages proof early; see Obtaining or Setting Aside a Default Judgment: A Practical Guide.

Part B: Opposing a motion to compel

The responding party's work starts long before a motion is filed. The best opposition is a set of responses that never needed one. The steps below assume a deficiency letter has arrived or a motion is coming.

Step 1: Triage the complaints honestly

What to do. Sort every item in the deficiency letter into three groups: (a) complaints that are right, (b) complaints where the parties disagree in good faith about scope, burden, or privilege, and (c) complaints that are wrong. Review the original responses against Rules 33(b)(4) and 34(b)(2)(B)-(C) with fresh eyes. Ask the client what was actually searched, by whom, and how.

Why. The fee exposure under Rule 37(a)(5) depends on whether the position was "substantially justified." Group (a) items cannot be defended and will cost fees if they reach a motion. Group (b) items are where the opposition should spend its effort. Group (c) items may support a fee award against the movant under Rule 37(a)(5)(B).

Authority. The responding lawyer's signature on the original responses certified a reasonable inquiry under Rule 26(g)(1). If that inquiry did not happen, Rule 26(g)(3) makes a sanction mandatory. The reasoning in Mancia applies with special force to responses that were drafted from a form.

Step 2: Cure what can be cured, before the motion is filed

What to do. Serve amended responses that withdraw general objections, state specific objections, say whether anything is withheld on the basis of each objection, give a date for completing production, and, for interrogatories, provide complete answers signed under oath by the party. Produce a privilege log if one is owed. Supplement under Rule 26(e) where earlier answers have become incomplete.

Why. Rule 37(a)(5)(A) requires fees if "the disclosure or requested discovery is provided after the motion was filed." Curing before filing eliminates that exposure and often eliminates the motion.

Pitfalls. An amended response that still uses "subject to and without waiving" language without a withholding statement does not cure the problem. A promise to produce "on a rolling basis" without an end date is likely to be treated as incomplete under Rule 34(b)(2)(B), which requires production to be completed no later than the time specified in the request or another reasonable time specified in the response. For response drafting from the ground up, see Mastering Document Discovery: A Comprehensive Guide to Objecting and Responding to Requests for Production and Mastering Interrogatories: A Comprehensive Guide to Objecting and Responding in Civil Litigation.

Step 3: Negotiate in good faith, and offer something

What to do. Participate in the conference prepared to propose specific limits: custodians, date ranges, search terms, sampling, phased production, or production of a subset first. Put each proposal in writing. If the requesting party refuses a reasonable compromise, that refusal belongs in the opposition.

Why. Judges frequently split the difference. The party that has offered a specific, reasonable middle ground is more likely to have the court adopt it.

Authority. The 2015 committee note to Rule 26(b)(1) emphasizes that proportionality is a shared responsibility. Both sides' counsel must cooperate under Rule 1.

Step 4: Build the burden and proportionality evidence

What to do. Obtain a declaration from someone with knowledge (an IT manager, a records custodian, or an e-discovery vendor) describing the data sources, volumes, hit counts for proposed search terms, estimated review hours and costs, and any technical obstacles. For inaccessible ESI, explain why it is not reasonably accessible under Rule 26(b)(2)(B). Tie the burden to the proportionality factors in Rule 26(b)(1): the amount in controversy, the importance of the discovery, relative access, and resources.

Why. Conclusory burden objections lose. Specific evidence wins or produces a narrower order.

Authority. Josephs requires a specific showing of burden. On cost shifting for inaccessible data, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). On the breadth of relevance before proportionality analysis, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), though its broad formulation predates the 2015 amendments. Search protocol negotiations that avoid these fights are covered in Negotiating an ESI Protocol and Managing E-Discovery Costs.

Step 5: Consider a cross-motion for a protective order

What to do. If the dispute is about whether discovery should happen at all, or under what conditions, move for a protective order under Rule 26(c) at the same time as the opposition, or earlier. Ask for specific relief: forbidding the discovery, limiting its scope, specifying terms such as cost sharing, or requiring confidentiality protections.

Why. A protective order motion puts the burden question squarely before the court on the responding party's terms. It is also the only safe course when a party believes it should not have to appear for a deposition or respond at all: Rule 37(d)(2) provides that a failure to act "is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c)."

Authority. Rule 26(c)(1) requires good cause and a certification of conferral; Rule 26(c)(3) applies Rule 37(a)(5) to the expenses of the motion. Trial courts have broad discretion over protective orders, Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). For apex and executive depositions, a common protective order dispute, see Seeking or Opposing an Apex Deposition: A Practical Guide. The general process is in Obtaining and Defending a Protective Order: A Practical Guide.

Step 6: Write the opposition

What to do. Structure the opposition around the movant's disputes, in the same order. For each:

1. State what the responding party has already done (searches, productions, amendments) and when.
2. Identify what remains disputed, often much narrower than the motion suggests.
3. Explain the specific objection, supported by the declaration.
4. Offer the compromise the responding party proposed, and ask the court to adopt it.

Address the conference certification if it was inadequate, and the fee request directly: explain why the position is substantially justified, citing the genuine dispute, the split authority, or the burden evidence.

Why. Judges respond to narrowed disputes and reasonable proposals. A responding party that concedes what it should and fights only what it can win gains credibility for the contested items.

Pitfalls. Do not argue that the movant failed to meet and confer if your own side did not respond to their letters. Do not argue relevance with the deleted "reasonably calculated" standard in reverse, as though anything not admissible is undiscoverable; Rule 26(b)(1) says information "need not be admissible in evidence to be discoverable."

Step 7: Limit fee exposure

What to do. If the motion is likely to be granted in part, say so and argue for apportionment under Rule 37(a)(5)(C). Point to items the movant lost, items it never raised in the conference, and items the responding party cured before filing. If the movant filed without a real conference, argue Rule 37(a)(5)(A)(i). If an award would fall on counsel, consider whether counsel needs separate representation.

Authority. "Substantially justified" in Pierce and Maddow; the conference prerequisite in Rule 37(a)(5)(A)(i). An award against a lawyer cannot be appealed immediately, even after the lawyer withdraws, Cunningham v. Hamilton County, 527 U.S. 198 (1999), so the time to make the record is in the district court.

Step 8: Object, comply, or both

What to do. If a magistrate judge decides the motion, decide within days whether to object under Rule 72(a). The deadline is 14 days after service of the order. Comply with the order while objections are pending unless the court grants a stay; an objection does not automatically suspend the deadline in most districts. Track compliance carefully and document it.

Authority. The district judge sets aside a nondispositive order only if it is clearly erroneous or contrary to law, Rule 72(a). Monetary sanctions are generally nondispositive, Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522 (2d Cir. 1990), while a sanction that strikes pleadings or enters default is dispositive and gets de novo review, Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir. 1988). Orders compelling disclosure of privileged material are not immediately appealable, Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009); the exceptional routes are covered in Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment.

Pitfalls. If compliance is genuinely impossible, because documents are held by a foreign affiliate subject to a blocking statute, for example, tell the court before the deadline and show what was done to try. Societe Internationale protects inability, not indifference, and the Ninth Circuit in Richmark upheld contempt sanctions where a foreign party relied on its home country's secrecy law without good-faith efforts to comply.

Nonparties: motions under Rule 45

Requesting party. A motion to compel a nonparty goes to the court for the district where compliance is required, Rule 45(d)(2)(B)(i), on notice to the nonparty. The compliance court can transfer it to the issuing court if the nonparty consents or exceptional circumstances exist, Rule 45(f). Confer first, as with a party. Expect the court to require cost protection: the order "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance," Rule 45(d)(2)(B)(ii). Contempt is available under Rule 45(g) for a failure to obey without adequate excuse.

Nonparty. Serve written objections before the earlier of the compliance date or 14 days after service, Rule 45(d)(2)(B). Once timely objections are served, the requesting party must move to compel; the nonparty need not move to quash, although it may. Keep any agreement about scope and timing in writing and meet it: in In re Fannie Mae Securities Litigation, 552 F.3d 814 (D.C. Cir. 2009), the D.C. Circuit affirmed contempt against a nonparty agency that stipulated to a schedule and then missed it. For the full nonparty playbook, see Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash and Responding to a Third-Party Subpoena: A Practical Guide for Businesses.

Timeline and effort table

The periods below are typical planning assumptions, not rules; local rules and individual practices control. Effort levels are relative and vary with the number of disputes and volume of exhibits.

Worked example: Saltmarsh Freight v. Corvo Systems

Saltmarsh Freight, Inc., a regional freight broker, sues Corvo Systems, LLC, which sold it a dispatch software platform that, according to Saltmarsh, never worked. Saltmarsh claims breach of contract and breach of warranty and seeks lost profits. The case is in federal court on diversity jurisdiction, with discovery referred to a magistrate judge whose individual practices require a joint letter of no more than four pages per side before any discovery motion. Contract issues in failed technology projects are addressed in Pursuing or Defending a Failed Technology Project Claim: A Practical Guide.

Corvo's motion (Saltmarsh responding). Corvo served requests for Saltmarsh's dispatcher communications about the platform, including text messages, for three years. Saltmarsh objected to each request with the same boilerplate and produced nothing from phones. Corvo's deficiency letter identified the defects under Rule 34(b)(2)(B)-(C) and proposed limiting the request to twelve dispatchers and to messages that mention the platform or its error codes.

Saltmarsh's lawyer followed Part B. In triage, she concluded that the boilerplate was indefensible (group a), that the scope question was a genuine dispute (group b), and that one request for "all communications with any customer" was overbroad on any view (group c). She served amended responses within ten days, withdrawing general objections, stating that Saltmarsh was withholding messages of dispatchers who never used the platform, and agreeing to collect from eight dispatchers who did. She obtained a declaration from Saltmarsh's IT manager describing the phones (company-owned for five dispatchers, personal for three), the collection method, and the estimated cost of forensic collection from the personal devices. The collection issues are covered in Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide.

The parties could not agree on the remaining four dispatchers or on the overbroad customer request. The joint letter presented only those two issues. The magistrate judge ordered collection from two of the four additional dispatchers, sustained the objection to the customer request, and denied fees on both sides, finding each position substantially justified. Saltmarsh's early cure meant there was no fee exposure for the boilerplate.

Saltmarsh's motion (Corvo responding). Meanwhile, Corvo had promised in a conference to produce its source code change log and internal defect tickets for the Saltmarsh deployment "within 30 days." Sixty days later, nothing had arrived. Saltmarsh's counsel had a confirming email documenting the promise. She sent a short letter citing it, held one more call at which Corvo's counsel said the tickets were "being reviewed," and then filed a joint letter, with Corvo's portion arriving a day late.

The joint letter quoted the requests, attached the confirming email, and asked for production within 14 days and fees. Corvo argued burden but offered no declaration. The magistrate judge ordered production within 14 days, warned in writing that noncompliance "may result in sanctions under Rule 37(b)(2)(A), including an order that facts regarding the platform's defects be taken as established," and awarded Saltmarsh its fees for the joint letter under Rule 37(a)(5)(A), finding no genuine dispute where Corvo had agreed to produce. Saltmarsh's fee declaration sought 9.8 hours, segregated from conference time; the court awarded it in full.

Corvo produced the tickets on day 13 but withheld the change log, now asserting that it contained trade secrets. Because a protective order with an attorneys'-eyes-only tier was already in place, Saltmarsh moved for sanctions under Rule 37(b). The district judge, to whom the magistrate judge referred the sanctions request because of its potential effect on the merits, ordered production of the log within seven days under the attorneys'-eyes-only designation, awarded fees under Rule 37(b)(2)(C), and said that any further failure would lead to an establishment order. The log arrived on day six. The pattern of the case then changed: Corvo's counsel began conferring in earnest, and the remaining discovery closed without another motion.

What the example shows. Each side won where it had prepared and lost where it had not. The early cure of boilerplate cost Saltmarsh nothing and saved it a fee award. Corvo's undocumented burden claim and its broken promise cost it two fee awards and nearly an establishment order.

Common mistakes

Requesting party

1. Filing after a single email exchange, which risks denial and forfeits fees.
2. Moving on every request instead of the few that matter.
3. Arguing the deleted "reasonably calculated" standard.
4. Asking for terminating sanctions on a first motion.
5. Failing to calendar compliance dates and missing the chance to enforce promptly.
6. Submitting a fee declaration with block billing and no rate evidence.

Responding party

1. Defending boilerplate instead of curing it before the motion.
2. Asserting burden without a declaration.
3. Producing only after the motion is filed, which still triggers fees.
4. Not appearing at a deposition rather than moving for a protective order, which exposes the party to Rule 37(d).
5. Missing the 14-day Rule 72(a) deadline.
6. Assuming that an objection to a magistrate judge's order stays the compliance date.

FAQ

How long do I have to file a motion to compel? Rule 37 has no deadline, but courts deny untimely motions, and some local rules set one. File promptly after the conference process fails and before the discovery cutoff.

Do I need to file the discovery requests with the motion? Yes, as exhibits. Discovery papers are not filed until used under Rule 5(d)(1)(A), so the court will not have them otherwise. Some local rules require verbatim quotation in the motion itself.

Can I recover fees if the other side produces after I file but before the ruling? Yes. Rule 37(a)(5)(A) applies when "the disclosure or requested discovery is provided after the motion was filed," subject to the usual exceptions.

What if opposing counsel will not return my calls? Document each attempt and certify that you attempted to confer. Rule 37(a)(1) requires a good-faith effort, not the other side's cooperation.

Can the court award fees against me, the lawyer, personally? Yes. Rule 37(a)(5) authorizes awards against "the party or attorney advising that conduct, or both." Separately, 28 U.S.C. § 1927 reaches lawyers who multiply proceedings unreasonably and vexatiously.

Should I move for a protective order or just oppose the motion to compel? If the dispute is about whether discovery should proceed at all or on what conditions, a protective order motion frames the question on your terms, and it is essential if you intend not to appear or respond pending a ruling.

What happens if the other side still does not comply? Move for sanctions under Rule 37(b)(2)(A), asking for a sanction tied to the withheld discovery, plus mandatory expenses. The doctrine and circuit tests are analyzed in Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment.

Practical takeaways

• Decide whether the dispute is worth a motion, who the target is, and what local practice requires before drafting.
• Diagnose request by request, write a specific deficiency letter, confer live, and confirm every conference in writing.
• Use the procedure the judge requires, and give the judge each dispute in a form that can be decided in minutes.
• Ask for fees every time, and prove them with a clean, segregated declaration.
• On the responding side, cure what is indefensible before the motion, document burden with evidence, offer specific compromises, and move for a protective order when the dispute is whether discovery should happen at all.
• Watch the 14-day Rule 72(a) deadline and the compliance dates in every order.
• Treat the order as the foundation for any later Rule 37(b) motion: clear, directed to the party, with a deadline and, ideally, a warning.

The task list for each side is in the Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist, and the letters, logs, motions, declarations, and proposed orders are in the Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions.

This document is general information, not legal advice for any particular situation. Local rules and individual judges' practices change often and should be checked before every filing.

Related Documents

Related Articles

• Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment: the doctrine and case law behind every step.
• A Practical Discovery Refresher: Mastering the Tools, Rules, and Pitfalls of Federal Civil Litigation: the discovery devices being enforced.
• Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case: when the problem is lost ESI.
• Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash: enforcement against nonparties.
• Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment: the rare routes to early review.

Related Guides

• Obtaining and Defending a Protective Order: A Practical Guide: the responding party's cross-motion.
• Mastering Document Discovery: A Comprehensive Guide to Objecting and Responding to Requests for Production: responses that avoid motions.
• Mastering Interrogatories: A Comprehensive Guide to Objecting and Responding in Civil Litigation: specific objections and complete answers.
• Rule 37(c)(1) Preclusion of Undisclosed Evidence: A Practical Guide: the disclosure-failure remedy.
• Seeking or Opposing an Apex Deposition: A Practical Guide: a common protective order dispute.
• Obtaining or Setting Aside a Default Judgment: A Practical Guide: when sanctions end in default.

Related Checklists

• Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist: the steps in this guide as tasks.
• Responding to Requests for Production Checklist: A Practical Checklist: compliant Rule 34 responses.
• Responding to Interrogatories Checklist: A Practical Checklist: compliant Rule 33 answers.
• Rule 45 Subpoena Response Checklist: A Practical Checklist: the nonparty's deadlines.

Related Toolkits

• Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions: templates for each step.
• Motion Practice Toolkit: Dispositive, Discovery, and In Limine Motions: general motion practice forms.
• Fee Shifting and Litigation Cost Recovery Toolkit: fee recovery beyond Rule 37.
• Confidentiality Toolkit: Protective Orders, Designation Challenges, and Sealing Motions: handling confidential exhibits to discovery motions.