Alaska Motion to Compel Discovery

Introduction

Key Things to Know

1. 1

   An Alaska motion for an order compelling discovery asks the superior court to order an answer, a designation or an inspection that Rule 37(a)(2)(B) covers, and the threshold question is timing rather than merit. Rule 26(d)(1) provides that in an action in which disclosure is required under Rule 26(a), a party may serve up to ten of the thirty interrogatories allowed under Rule 33(a) at the times allowed by section (d)(2)(C), and that otherwise a party may not seek discovery from any source until the parties have held the meeting paragraph (f) requires. Discovery served into that window is not yet owed, so there is nothing to order.

2. 2

   Rule 26(f) fixes when the window opens. It requires the parties, except where otherwise ordered and except in actions exempted from disclosure under Rule 26(a), to meet as soon as practicable and in any event at least 14 days before a scheduling conference is held or a scheduling order is due under Rule 16(b). The purpose the rule states is to discuss the nature and basis of their claims and defenses, to make or arrange for the Rule 26(a)(1) disclosures, and to develop a proposed discovery plan and a proposed alternative dispute resolution plan.

3. 3

   The ten interrogatories you may serve early are not a bonus. Rule 33(a) allows only thirty interrogatories on another party without leave of court or written stipulation, including all discrete subparts, and then says in terms that this limit includes interrogatories served under Rule 26(d)(1). Spend ten in the pre-meeting window and twenty remain. Rule 33(a) also carries a form requirement on your own paper: there shall be sufficient space provided so that answers to the interrogatories propounded may be inserted thereon.

4. 4

   You can move even where nobody served any discovery. Rule 26(a)(1) requires a party, without awaiting a discovery request, to provide the factual basis of each of its claims or defenses, the people likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, the makers and custodians of written or recorded statements, the relevant documents and electronically stored information, photographs, diagrams and videotapes, and each insurance agreement that may satisfy a judgment. Rule 37(a)(2)(A) makes a failure to make that disclosure its own ground to move.

5. 5

   Requests for admission are not in the compel rule. Rule 37(a)(2)(B) names Rules 30, 31, 30(b)(6), 31(a), 33 and 34 and stops. Under Rule 36(a) an unanswered request is admitted by the clock alone, because the matter is admitted unless within 30 days after service of the request the party serves a written answer or objection. Where an answer did arrive and is inadequate, Rule 36(a) gives the requesting party a motion to determine the sufficiency of the answers or objections, on which the court may order either that the matter is admitted or that an amended answer be served.

6. 6

   Rule 37(a)(4)(A) is mandatory and the verb is shall. If the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court shall require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, to pay the moving party's reasonable expenses including attorney's fees. Three findings excuse it: that the motion was filed before any attempt to obtain the discovery without court action, that the opposing nondisclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust. 37(a)(4)(B) runs the same way against a losing movant, and 37(a)(4)(C) says that on a part-granted motion the court may apportion instead.

7. 7

   No Alaska rule sets a number of days within which this motion has to be brought, so your real date comes from the scheduling order. Rule 16(b)(1) requires the judge, except in categories of actions exempted under Rule 16(g), to enter a scheduling order that limits or establishes the time to file motions and the time to complete discovery. Read those two dates together with Rule 77: opposition is due 10 days from service of the motion, a reply may follow within five days of the opposition, and the court rules on the papers unless oral argument is allowed.

Alaska Requirements for Motion to Compel

• Whether Discovery Was Open at All When You Served

  Settle this before anything else. Rule 26(d)(1) provides that in an action in which disclosure is required under Rule 26(a), a party may serve up to ten of the thirty interrogatories allowed under Rule 33(a) at the times allowed by section (d)(2)(C), and that otherwise, except by order of the court or agreement of the parties, a party may not seek discovery from any source until the parties have held the meeting paragraph (f) requires. Record the date of the Rule 26(f) meeting, or the order or stipulation you are relying on, or the fact that the case is exempted from disclosure so that Rule 26(d)(2) governs instead. A request served into the closed window is not yet owed.

• Which of the Two Subparagraphs of Rule 37(a)(2) You Are Under

  37(a)(2)(A) covers a failure to make a disclosure required by Rule 26(a) or Rule 26.1(b), and you need not have served anything to use it. 37(a)(2)(B) covers a deponent who fails to answer a question under Rules 30 or 31, an entity that fails to make a designation under Rule 30(b)(6) or 31(a), a party who fails to answer a Rule 33 interrogatory, and a party who fails to respond that a Rule 34 inspection will be permitted or fails to permit it. Name the subparagraph on the face of the motion, because the two reach different failures and ask for different orders.

• The Right Court Under Rule 37(a)(1), Which Differs for a Nonparty Deponent

  Rule 37(a)(1) provides that an application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the judicial district where the deposition is being taken, and that an application for an order to a deponent who is not a party shall be made to the court in the judicial district where the deposition is being taken. Against a party you have a choice. Against a nonparty the verb is shall, so the district of the deposition is the only forum.

• Proof That the Thirty-Day Response Period Had Already Run

  Rule 33(b)(3) gives 30 days after service of the interrogatories, Rule 34(b) gives 30 days after service of an inspection request, and Rule 36(a) gives 30 days on a request for admission. Each period moves only by direction of the court or, absent an order, by written agreement of the parties subject to Rule 29, so an informal extension between counsel is a courtesy rather than a change to the rule. State the computation in the motion. No Alaska rule sets a period within which the motion itself must be brought; the dates that bind you come from the Rule 16(b) scheduling order, which limits or establishes the time to file motions and the time to complete discovery.

• Your Running Interrogatory Count, With Discrete Subparts and the Early Ten Included

  Rule 33(a) allows only thirty interrogatories upon another party without leave of court or written stipulation, including all discrete subparts, and says that this limit includes interrogatories served under Rule 26(d)(1). Count before you compel, because a set that looks compliant on its face may not be once lettered subparts are counted, and that is an objection you will have to meet. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2). Rule 33(a) also requires sufficient space on the interrogatories so that the answers may be inserted on them.

• The Rule 37(a)(2) Certification, Stated on the Face of the Motion

  Both subparagraphs end the same way: the motion must include a certification that the movant has in good faith conferred or attempted to confer with the other side in an effort to secure the disclosure or the material without court action. Rule 37(d) carries the same requirement for the total-failure route. Keep the correspondence, because the same record answers the first escape hatch in Rule 37(a)(4)(A) if the expenses are argued either way.

• The Rule 77 Filing Package and the Five-Day Window to Ask for Argument

  Rule 77(b) requires copies of the documentary evidence you rely on, a brief and complete written statement of reasons including a memorandum of points and authorities, and an appropriate order for the court's signature, although a self-represented party need not file a proposed order. Rule 77(c)(2) gives the other side 10 days from service to oppose and Rule 77(d) gives you five days from the opposition to reply. Rule 77(e)(1) requires a party who wants oral argument to request a hearing within five days, and Rule 77(e)(2) makes argument on a motion of this kind discretionary, so Rule 77(f) means the usual outcome is a ruling on the papers.

• The Expenses Request, and Your Own Exposure Under Rule 37(a)(4)(B)

  Rule 37(a)(4)(A) provides that if the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court shall require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the moving party's reasonable expenses including attorney's fees, subject to three findings that excuse it. 37(a)(4)(B) runs the other way against a losing movant on two findings, and 37(a)(4)(C) lets the court apportion on a part-granted motion. Rule 82's prevailing-party schedule is a case-outcome award and does not pay for this motion. Rule 37(g) is a separate discretionary route for obstructionist discovery conduct that does not require a granted motion at all.