Maine Motion to Compel

Introduction

Key Things to Know

1. 1

   Start by understanding that Maine replaces the motion with a letter. The authority is Rule 37(a), captioned Motion for Order Compelling Discovery, which lets a party apply for an order compelling discovery where a deponent will not answer, an entity will not make a designation, a party will not answer an interrogatory, or a party will not produce or permit inspection. But Rule 37(a)(1) routes the application through Rule 26(g), and Rule 26(g)(1) bars the written motion without a judge's prior approval. Rule 37(a)(3) still does its work: an evasive or incomplete answer is to be treated as a failure to answer.

2. 2

   The letter has prescribed contents and a prescribed limit on its attachments. It shall succinctly and without argument or citation describe the nature of the dispute and the relief requested. In cases involving objections to interrogatories or document requests, the moving party shall attach copies of only the specific objections in question and the specific interrogatories or requests to which objection has been made. In exigent circumstances the request for a hearing may be made to the clerk by telephone or in person. And Rule 26(g)(1) puts your signature behind the pre-filing step without a separate document: the request for a hearing constitutes a representation to the court, subject to Rule 11, that the conference with the opposing party has taken place and that the moving party has made a good faith effort to resolve the dispute.

3. 3

   Whether you get a hearing depends on what came back. Rule 26(g)(2) provides that the court may issue an order without a hearing if the request is based on a failure to either answer or object to outstanding discovery requests, and that in all other cases the parties shall be prepared to offer oral argument at a hearing or a telephone or video conference on the discovery issues in question if scheduled by the court. So total silence can be dealt with on the letter alone, while an objection-based dispute is argued out loud. The same paragraph closes the written route: no written argument shall be submitted and no motion papers shall be filed with the clerk without prior leave of the court.

4. 4

   The clerk runs the calendar and you run the logistics. Rule 26(g)(1) provides that the clerk shall inform the moving party of the manner, date and time of the hearing, that the moving party shall provide prompt notice of the hearing to all the other parties, and that if the hearing is to be conducted by telephone conference or video conference the moving party shall connect all other parties who elect to participate and shall initiate the telephone or video conference call to the court. Those are duties on you, not on the court, and missing them is the practical way a Maine discovery hearing goes wrong.

5. 5

   What you come away with counts as a real order. Rule 26(g)(3) provides that the justice or judge may make such orders at the hearing as are necessary to resolve the dispute, that such orders shall be reduced to writing and shall constitute orders for purposes of Rule 37, and that if the motion is not decided at the hearing the justice or judge may order a written motion and supporting memoranda to be filed under Rules 7 and 37 and may make such orders as are necessary to narrow or dispose of the dispute. So the written motion is not abolished, it is deferred until a judge asks for it.

6. 6

   Rule 37(a)(4) is mandatory in both directions. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both of them, to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust. If the motion is denied, the same shall runs against the moving party or the attorney advising the motion or both of them. A split result may be apportioned among the parties and persons in a just manner.

7. 7

   Two Maine numbers worth checking before you write to the clerk. Rule 33(a) provides that unless otherwise ordered by the court, more than one set of interrogatories may be served but not more than a total of 30 may be served by a party on any other party, and that each distinct subpart in an interrogatory shall be deemed a separate interrogatory. That is a running total across sets, not a fresh allowance for each one. Rule 33(a) also sets the answer period at 30 days after service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons, complaint, and notice regarding Electronic Service upon that defendant, with the court able to allow a shorter or longer time.

Maine Requirements for Motion to Compel

• A Letter to the Clerk, Not a Written Motion

  Me. R. Civ. P. 26(g)(1) provides that no written motions under Rule 26 through 37 shall be filed without the prior approval of a justice or judge of the court in which the action is pending, and Rule 37(a)(1) provides that a motion for an order to a party or a deponent shall be made under Rule 26(g). The route is to talk to the other side and then, if the dispute is not resolved by agreement, to request a hearing from the clerk by letter. In exigent circumstances the request may be made to the clerk by telephone or in person. Rule 26(g)(2) adds that no written argument shall be submitted and no motion papers shall be filed with the clerk without prior leave of the court.

• The Letter's Contents: Succinct, Without Argument, Without Citation

  Rule 26(g)(1) provides that the letter shall succinctly and without argument or citation describe the nature of the dispute and the relief requested. Describe the disagreement and say what order you want; do not brief it and do not cite authorities. The request for a hearing also carries a representation: under the same paragraph it constitutes a representation to the court, subject to Rule 11, that the conference with the opposing party has taken place and that the moving party has made a good faith effort to resolve the dispute. That is why Maine requires no separate certificate.

• Copies of Only the Specific Objections and the Specific Requests Objected To

  Rule 26(g)(1) provides that in cases involving objections to interrogatories or document requests, the moving party shall attach to the letter copies of only the specific objections in question and the specific interrogatories or requests to which objection has been made. The word only limits the attachment: not the whole set, not the full response, not the correspondence. Assembling it is easier where the response complied with the set-forth-in-full duty in Rule 33(a) and Rule 36(a), under which a responding party shall set forth each interrogatory or request in full immediately preceding its answer or objection.

• Which Route Applies, Because Silence and Objections Are Handled Differently

  Rule 26(g)(2) provides that the court may issue an order without a hearing if the request is based on a failure to either answer or object to outstanding discovery requests, and that in all other cases the parties shall be prepared to offer oral argument at a hearing or a telephone or video conference on the discovery issues in question if scheduled by the court. Decide which you are in before you write, because it changes whether you are preparing to speak. Rule 37(a)(3) provides that an evasive or incomplete answer is to be treated as a failure to answer.

• The Hearing Logistics, Which Are Yours Rather Than the Court's

  Rule 26(g)(1) provides that the clerk shall inform the moving party of the manner, date and time of the hearing, that the moving party shall provide prompt notice of the hearing to all the other parties, and that if the hearing is to be conducted by telephone conference or video conference the moving party shall connect all other parties who elect to participate and shall initiate the telephone or video conference call to the court. Diary all three steps when the clerk writes back.

• Your Interrogatory Count Against the Running Total of Thirty

  Rule 33(a) provides that unless otherwise ordered by the court, more than one set of interrogatories may be served, but not more than a total of 30 interrogatories may be served by a party on any other party, and that each distinct subpart in an interrogatory shall be deemed a separate interrogatory for the purposes of the rule. The thirty is a running total across every set rather than a per-set allowance, and subparts count, so a numbered question with four lettered parts has spent four. Questions beyond the thirtieth are vulnerable on their face.

• Proof the Thirty or Forty Five Day Period Had Run

  State the computation. Rule 33(a) requires the party served to serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons, complaint, and notice regarding Electronic Service upon that defendant, with the court able to allow a shorter or longer time. Note the three-part trigger on the defendant alternative. Maine sets no deadline for raising the dispute, so the dates that bind are the completion of discovery and the filing of motions in your Rule 16(a)(1) standard scheduling order.

• The Expense Request, and the Exposure If the Order Is Refused

  Rule 37(a)(4) provides that if the motion is granted the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both of them, to pay the moving party's reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust, and that if the motion is denied the same applies against the moving party or the attorney advising the motion. A split result may be apportioned. Rule 37(a)(2) separately lets the court make a Rule 26(c) protective order where the motion is denied in whole or in part, and Rule 26(g)(3) makes an order given at the hearing an order for Rule 37 purposes.