Question 1

Alabama words its forty-five day defendant window three different ways. Which one applies to my requests?

Accepted Answer

Pick by the device, because the wording changes the question you ask. For interrogatories, Rule 33(a) says the responding party shall serve answers and objections within thirty days after service of the interrogatories, except that the defendant may serve answers or objections within forty-five days after service of the summons and the complaint. For a request for production or inspection, Rule 34(b) uses the same permissive shape: a defendant may serve a response within forty-five days after service of the summons and complaint. For requests for admission, Rule 36(a) is drafted the other way round, as a protection rather than an option: unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons and complaint. The practical difference is who has to move. On the first two the defendant simply has the longer period available. On admissions the forty-five days is a floor, and a requesting party who wants it shorter has to get the court to shorten it. All three close with a power to vary: the court may allow a shorter or longer time under Rules 33(a) and 34(b), and such shorter or longer time as the court may allow under Rule 36(a). The reason the window exists at all is that Alabama permits early service: each of the three rules lets a request be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

Question 2

Do I have to copy the interrogatory and the objection into my Alabama motion?

Accepted Answer

Yes, where interrogatories are what you are moving on, and the requirement is statewide by rule rather than local practice. Rule 33(a) closes with two sentences: the party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory, and if that party so moves, the motion must set forth the complete text of an interrogatory to which objection is made and the complete text of the objection. Three things follow. Complete text means the text, not a summary and not an exhibit reference, for each interrogatory in dispute and for each objection to it. The modal is must, which stands out in a rule that otherwise uses shall throughout. And the duty is bounded: Rule 34(b) and Rule 36(a) send you to Rule 37(a) in exactly the same way but impose no complete-text requirement, so a motion about documents or admissions does not carry it. Alabama has nothing like a separately filed statement of discovery issues, and no statewide rule of court imposes one, so this requirement is the whole of the itemization obligation. In practice that makes the body of the motion the place where the dispute is set out: each interrogatory in full, each objection in full, and then what is wrong with it.

Question 3

I served sixty Alabama interrogatories and got answers to forty. Can I compel the rest?

Accepted Answer

On the text, no, and this is one of the sharpest practical limits in Alabama discovery. Rule 33(a) provides that a party shall not propound more than forty interrogatories to any other party without leave of court, and then makes the cap enforce itself: when the number of interrogatories exceeds forty without leave of court, the party upon whom they have been served need only answer or object to the first forty. So your opponent has done what the rule requires, no protective order was needed, and a motion aimed at numbers forty one through sixty has no rule behind it. Two counting rules usually make the problem worse than it looks. Subparts count: any subpart or separable question, whether or not separately numbered, lettered or paragraphed, propounded under an interrogatory shall be considered a separate interrogatory, so a set numbered 1 to 25 can easily be over forty. And co-parties are aggregated, because for purposes of the rule the word party includes all parties represented by the same lawyer or firm, so two defendants sharing a firm share one allowance. The route forward is leave rather than compulsion, and Rule 33(a) sets the standard: upon motion, and for good cause shown, the court may increase the number of interrogatories that a party may serve. Attorney review is available as an option if the count is close.

Question 4

The other side withheld Alabama documents as privileged. How long do they have to describe them?

Accepted Answer

Twenty-one days from your written request, and this clock is Alabama's own. Rule 26(b)(6)(A) provides that when a party withholds information otherwise discoverable under the rules on a claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and, upon written request by any other party, shall be supported by a description of the nature of the documents, communications, or things not produced sufficient to enable the demanding party to contest the claim. Then the timing: this supporting description shall be served within twenty-one days of the date a request is served, unless otherwise ordered. Two points of sequencing. The description obligation is triggered by your written request, not by the privilege claim itself, so the first move is to send the request rather than to file anything. And twenty-one days is shorter than the thirty-day response period, which makes it the earliest hard date in an Alabama document dispute. The federal counterpart imposes the same expressly-made and sufficient-description duty but attaches no number of days to it, so a form drafted from federal practice will not have this clock in it. If the description does not arrive, or arrives too thin to let you contest the claim, that is the record a motion for an order compelling production under Rule 37(a)(2) is built on.

Question 5

Can an Alabama expense award be made against my opponent's attorney?

Accepted Answer

Not under the words of the Alabama rule, and that is a real departure from federal practice. Rule 37(a)(4) provides that on a granted motion the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless it finds the opposition was substantially justified or that other circumstances make an award of expenses unjust. Read the middle branch carefully: the party advising such conduct. The federal rule at the same point reaches the party or attorney advising that conduct, and Alabama's does not name the attorney. The denied limb is narrower still, and worth knowing before you file. It says the court shall, after opportunity for hearing, require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, on the same two escapes. One payer, with no advising branch at all. So the mandatory shall fires in both directions, but the people who can be ordered to pay are not the same set. On a split result the court may apportion the reasonable expenses among the parties and persons in a just manner. One more scope point: Rule 36(a) says the provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the sufficiency motion, so the same asymmetry follows that motion too.

Question 6

My Alabama case is in district court rather than circuit court. Is there discovery to compel?

Accepted Answer

Only if the court has already permitted it, which inverts the usual question. Each Alabama discovery rule carries a separate subdivision for the limited-jurisdiction track, and Rule 26(dc) is the one that matters: Rule 26 applies in the district courts except that the reference to physical and mental examinations is deleted and all other discovery methods referred to in Rule 26(a) shall be available only in the discretion of the court on motion of the party seeking such discovery or by agreement of the parties. It adds that unless the parties agree otherwise, in no event shall the court order a deposition on oral examination or on written questions except when the witness will not be available to testify at the trial. Rule 37(dc) then closes the loop: Rule 37 applies in the district courts in those instances in which discovery has been permitted pursuant to Rule 26(dc). So in the district court the first filing is not a motion for an order compelling discovery at all. It is the motion that gets you discovery, or an agreement with the other side, and only once discovery has been permitted does Rule 37 reach a failure to provide it. Everything else on this page is written for the circuit court, which is Alabama's trial court of general jurisdiction for civil money actions and where discovery is available as of right.

Question 7

Why does my copy of Alabama Rule 37 print subdivisions (e) and (f) as omitted?

Accepted Answer

Because they are. The published text reads, in its entirety at that point, (e), (f) [Omitted.] So a form or practice guide that cites Alabama Rule 37(e) or 37(f) for anything is citing a subdivision with no content, and anyone drafting from federal muscle memory will reach for the wrong letter. The consequence worth knowing is where the electronically stored information provision actually lives. In Alabama it is Rule 37(g), captioned Failure to preserve electronically stored information, not 37(e) as in federal practice. Its history is also the opposite of what the caption suggests. Rule 37(g) as adopted effective February 1, 2010 was a safe harbour, in terms: absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. The December 21, 2018 amendment replaced that, and the Committee Comments explain the shift: the rule as amended focuses upon the reasonableness of the steps taken to preserve the information and whether it can be replaced or restored, specifies the measures a court may employ and the findings necessary to justify them, and forecloses reliance on the court's inherent authority. Before the court considers measures to cure prejudice it must find both that reasonable steps were not taken and that the information cannot be restored or replaced. Anyone still quoting the Alabama safe harbour is quoting superseded text.

Question 8

Alabama's Rule 37 sets no outside date. Is there any time limit on moving to compel?

Accepted Answer

Not in the rule. Read the whole of Alabama's Rule 37, all twelve pages of it including every Committee Comment, and the word days does not appear once, nor does waive, waiver or no later than. There is no window running from service of the response, no promptness standard, and no provision forfeiting the right to compel by delay, so a discovery dispute from months ago is still capable of being brought. The same is true across the rest of the discovery chapter: nothing in Rules 26, 33, 34 or 36 sets a period within which the propounding party must move. Three honest qualifications belong with that. The absence is established across the discovery rules, and this page does not assert that nothing anywhere else in Alabama practice bears on timing. Your real constraint is almost always the scheduling order and the discovery cutoff in your own case, which are set case by case rather than by the Rules, so the practical deadline is the one a judge gave you. And the absence of a deadline cuts the other way as well: because Alabama's expense provision is mandatory in both directions, a stale motion that the court finds was not substantially justified is still a motion you can be ordered to pay for. The one short clock in the chapter runs against a withholding party instead, the twenty-one days for a privilege description under Rule 26(b)(6)(A).

Alabama Motion to Compel

Find out where you stand in Alabama

Introduction

Key Things to Know

Key decisions before you file

Customize your Motion to Compel Template with DocDraft

Alabama Requirements for Motion to Compel

Which of Alabama's Two Response Clocks Applies, and Whether It Has Run

The Citation and the Relief in Alabama's Own Words

The Complete Text of Each Interrogatory and Each Objection, Inside the Motion

An Interrogatory Count That Accounts for Subparts and for a Shared Firm

A Written Request for the Privilege Description, and the Twenty-One Days It Starts

The Expense Request, and the Narrower Exposure You Carry If You Lose

The Attorney's Statement That Accompanies the Motion

The Right Court, Which in Alabama Is Fixed by Circuit

Frequently Asked Questions