Connecticut Motion to Compel Discovery

Introduction

Key Things to Know

1. 1

   The caption tells you what the filing is called. Practice Book Section 13-14 is headed Order for Compliance; Failure To Answer or Comply with Order, and item (b)(1) on its menu of orders is an order of compliance, so that is the relief to ask for by name. Section 13-7(e) confirms the route in terms: the party serving interrogatories or the notice of interrogatories may move for an order under Section 13-14 with respect to any failure to answer. Connecticut also calls the decider the judicial authority rather than the court, and a motion reaches a judge by being placed on the short calendar list.

2. 2

   Read Section 13-14(a)'s list before you draft, because it is the whole scope of the motion. It reaches a failure to answer interrogatories, a failure to answer them fairly, answers intentionally false or calculated to mislead, a failure to respond to requests for production, a failure to disclose the existence and contents of an insurance policy or the limits of it, a refusal to submit to a physical or mental examination, a failure to appear and testify at a duly noticed deposition, and a failure otherwise substantially to comply with a discovery order made under Sections 13-6 through 13-11. An unfair answer sits on the same footing as no answer at all, which is how Connecticut words what other states call an evasive response.

3. 3

   Requests for admission are missing from that list on purpose, and the substitute is a different motion with different outcomes. Under Section 13-23(b) the party who requested the admission may move to determine the sufficiency of the answer or objection. No such motion may be placed on the short calendar list until an affidavit by either counsel is filed certifying that bona fide attempts have been made to resolve the differences and that counsel have been unable to reach an accord. The judicial authority then has four choices: order that an answer be served, order that the matter is admitted, order that an amended answer be served, or defer final disposition of the request to a designated time before trial.

4. 4

   Section 13-14 does one thing most states split in two: it merges the order and the punishment. Because the same provision reaches both a first failure and disobedience of an earlier discovery order, the entire Section 13-14(b) menu is available on the first application. That menu is an order of compliance, the costs of the motion including a reasonable attorney's fee, an order that designated facts be taken to be established in accordance with the claim of the party obtaining the order, an order prohibiting the noncompliant party from introducing designated matters in evidence, and an order of dismissal, nonsuit or default. The limit is in the grant itself: the order must be proportional to the noncompliance and such as the ends of justice require.

5. 5

   The costs are discretionary, and Connecticut words the exposure unusually narrowly. Section 13-14(a) says the judicial authority may make such order, and Section 13-14(b) says such orders may include the award to the discovering party of the costs of the motion, including a reasonable attorney's fee. Because nothing is automatic there is no substantially justified escape and no unjust circumstances escape anywhere in the section, and the section never mentions counsel as a payer. There is also no provision exposing an unsuccessful movant to the other side's costs. The one mandatory discovery fee award in the book is elsewhere: Section 13-25 says the judicial authority shall make an expense order against a party who failed to admit something the requesting party then proved, unless it finds the failure to admit was reasonable.

6. 6

   Count sixty days, measured from a document rather than from delivery. Section 13-7(a) requires interrogatory answers to be served within sixty days after the date of certification of service of the interrogatories or the notice of interrogatories, and Section 13-10(a) sets the same sixty days for a written response to a request for production. Requests for admission run differently again, on thirty days from the filing of the notice required by Section 13-22(b). Written interrogatories cannot be served at all until after the return day, under Section 13-6(a). The clock moves only by a written stipulation filed with the court, by leave of the judicial authority, or by a timely objection, and under Section 13-7(d) objecting to some interrogatories does not excuse the rest.

7. 7

   Section 13-14 asks nothing of the movant before filing, which is unusual, but Connecticut has put real conditions on the other side of the dispute. Section 13-14(c) provides that the failure to comply may not be excused on the ground that the discovery is objectionable unless a written objection authorized by Sections 13-6 through 13-11 has been filed, so silence costs the responding party the objectionability argument altogether. Section 13-8(a) requires a valid objection to set forth each interrogatory, specifically state the reasons, and state whether any responsive information is being withheld on the basis of the stated objection. Section 13-8(c) then gives an overruled objector twenty days after the ruling to answer and serve the answer, unless the judicial authority orders otherwise.

Connecticut Requirements for Motion to Compel

• Which Vehicle You Need, Section 13-14 or Section 13-23(b)

  Practice Book Section 13-14(a) enumerates what it reaches: a failure to answer interrogatories or to answer them fairly, answers intentionally false or calculated to mislead, a failure to respond to requests for production, a failure to disclose the existence and contents of an insurance policy or its limits, a refusal to submit to a physical or mental examination, a failure to appear and testify at a duly noticed deposition, and a failure otherwise substantially to comply with a discovery order under Sections 13-6 through 13-11. Requests for admission are not on the list. An insufficient answer or an objection to one goes to a Section 13-23(b) motion to determine the sufficiency of the answer or objection instead, and total silence needs no motion because Section 13-23(a) admits the matter.

• The Sixty Day Date, Measured From the Certification of Service

  Section 13-7(a) requires interrogatory answers to be served within sixty days after the date of certification of service of the interrogatories or the notice of interrogatories, and Section 13-10(a) sets the same sixty days for a written response to a request for production. Take the date from the certification, not from the day the papers arrived. The period moves only by a written stipulation filed with the court, by leave of the judicial authority on motion, or by a timely objection, and Section 13-7(d) provides that objecting to certain interrogatories does not relieve the party of answering the rest within the sixty day period. Requests for admission run on thirty days from the filing of the Section 13-22(b) notice instead.

• What Went Wrong, in Section 13-14(a)'s Own Words

  Match the complaint to the statutory language rather than describing it generally, because the grant is drafted as a list. If the answers arrived but are useless, the phrase to use is that the party has failed to answer them fairly, or that the answers are intentionally false or in a manner calculated to mislead; Connecticut writes the quality of the answer into the grant itself rather than deeming a poor answer no answer. If a production response never came, that is a separate limb. Identify the interrogatories or requests by number and set out what was served against each one.

• Whether a Written Objection Was Ever Filed

  Check the file before drafting, because Section 13-14(c) turns on it: the failure to comply may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Sections 13-6 through 13-11 has been filed. If nothing was filed, say so in a line. If something was, Section 13-8(a) sets the standard it had to meet, requiring the objecting party to set forth each interrogatory, specifically state the reasons for the objection, and state whether any responsive information is being withheld on the basis of the stated objection.

• The Papers Annexed to the Motion, Because the Court File Lacks Them

  Section 13-7(a) provides that interrogatory answers shall not be filed with the court but shall be served, and Section 13-8(b) keeps the cover sheet and the answers out of the file unless the responding party objected, in which case only the cover sheet is filed. Section 13-22(b) likewise keeps a request for admission out of the file, requiring instead a notice stating that the request was served, on whom, and when. So the judicial authority cannot look the position up: attach the discovery you served, the certification of service it was measured from, and whatever came back.

• Which Orders You Are Asking For From the Section 13-14(b) Menu

  Section 13-14(b) lists five: an order of compliance; the award to the discovering party of the costs of the motion, including a reasonable attorney's fee; an order that the matters regarding which the discovery was sought or other designated facts be taken to be established in accordance with the claim of the party obtaining the order; an order prohibiting the party who has failed to comply from introducing designated matters in evidence; and an order of dismissal, nonsuit or default. Because Section 13-14 merges the order and the sanction, the whole menu is available on the first application. Section 13-14(a) caps what you ask for: the order must be proportional to the noncompliance and such as the ends of justice require.

• The Costs Request Under Section 13-14(b)(2), and What It Does Not Say

  Ask for the costs of the motion including a reasonable attorney's fee, and do not describe it to anyone as automatic. Both Section 13-14(a) and Section 13-14(b) use may, so there is no mandatory award and consequently no substantially justified or unjust circumstances exception written anywhere in the section. The section never names counsel as a payer, and it creates no exposure for an unsuccessful movant. For contrast, Section 13-25 is the one mandatory discovery fee award in the book: where a party failed to admit something the requesting party then proved, the judicial authority shall make the expense order unless it finds the failure to admit was reasonable.

• Whether the Interrogatories Were Statewide Forms

  Section 13-6(b) limits the interrogatories to numbered Practice Book forms in motor vehicle personal injury, premises liability, loss of consortium and uninsured or underinsured motorist actions, unless the judicial authority finds them inappropriate or inadequate, and Section 13-9 does the same for requests for production. Section 13-6(c) limits medical negligence interrogatories to Forms 218, 220 and 221, to which no objections shall be allowed, plus twenty additional interrogatories as of right, which may not contain subparts. If your case is form governed, say so: Section 13-8(a) and Section 13-10(h) forbid any objection to the forms, which narrows the dispute considerably.