Mississippi Motion to Compel

Introduction

Key Things to Know

1. 1

   Mississippi's uniform rules, not Rule 37, decide whether your motion gets a hearing. The motion is the paper that asks a circuit, county or chancery court to order unanswered or stonewalled discovery answered. UCRCCC 4.03(C) supplies the gate: no motion to compel shall be heard unless the moving party shall incorporate in the motion a certificate that movant has conferred in good faith with the opposing attorney in an effort to resolve the dispute and has been unable to do so, and motions to compel shall quote verbatim each contested request, the specific objection to the request, the grounds for the objection and the reasons supporting the motion. Uniform Chancery Court Rule 1.10(D) carries the same words for chancery court.

2. 2

   M.R.C.P. 26(c) gives you a route the motion does not. At any time after the commencement of the action the court may hold a conference on the subject of discovery, and shall do so if requested by any party. The request has four prescribed contents: a statement of the issues to be tried, a plan and schedule of discovery, limitations to be placed on discovery if any, and other proposed orders with respect to discovery. Objections or additions are due no later than ten days after service of the request. The court then enters an order fixing the issues, establishing a plan and schedule of discovery, setting limitations upon discovery, and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the case. Rule 37(e)(i) backs it up, because a party or counsel who without good cause fails to cooperate in framing a discovery plan by agreement can be sanctioned for that alone.

3. 3

   Check how the responses are laid out before you assume they were served. UCRCCC 4.03(B) requires the responding party, as part of the responses, to set forth immediately preceding the response the question or request to which such response is given, and then adds that responses shall not be deemed to have been served without compliance to this subdivision. Uniform Chancery Court Rule 1.10(C) is in the same terms. So a sworn, substantively complete set of answers laid out as a bare numbered list has, on the rule's own words, not been served. That moves the dispute onto M.R.C.P. 37(d), which covers a party that failed to serve answers to Rule 33 interrogatories or a written response to a Rule 34 request at all, and for requests for admission it meets Rule 36(a), under which the matter is admitted if nothing is served in time.

4. 4

   Read Rule 37(a)(4) before you decide whether to file, because it runs both ways. 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 the reasonable expenses incurred in obtaining the order including attorney's fees, unless the court finds that the movant filed the motion before attempting in good faith to obtain the discovery without court action, that the opposition was substantially justified, or that other circumstances make an award of expenses unjust. If the motion is denied the same shall runs against the moving party or the attorney advising the motion or both. If it is granted in part and denied in part the court may apportion the expenses in a just manner. Note the number: Mississippi's fee provision is 37(a)(4), not 37(a)(5).

5. 5

   The real outside date in a Mississippi case is a discovery window rather than a motion deadline. UCRCCC 4.03(A) provides that all discovery must be completed within ninety days from service of an answer by the applicable defendant, and that additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Uniform Chancery Court Rule 1.10(A) carries the same ninety days and adds a fallback where the pleading is one to which no answer is required: absent a scheduling motion, discovery shall be completed ninety days from completion of service of process on all defendants. Both pair it with an expert cut-off, because absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated to all attorneys of record at least sixty days before trial.

6. 6

   Requests for admission do not go to the motion to compel in Mississippi. Rule 37(a)(2) lists deposition questions under Rules 30 and 31, designations under Rules 30(b)(6) and 31(a), interrogatories under Rule 33 and inspection requests under Rule 34, and it does not list Rule 36. Rule 36(a) supplies its own vehicle: the party who has requested the admissions may move to determine the sufficiency of the answers or objections, and unless the court determines that an objection is justified it shall order that an answer be served, or it may order either that the matter is admitted or that an amended answer be served. Rule 36(a) sends the expenses on that motion back to Rule 37(a)(4). Where nothing was served at all the matter is already admitted by the rule, so there is nothing left to compel.

7. 7

   Count the clock and the number of questions before anything is filed. Rule 33(b)(3) gives thirty days after service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons and complaint upon that defendant, and Rule 34(b)(ii)(A) says the same for production. Rule 36(a) turns those forty-five days into a floor for a defendant rather than an option. There is no whichever-is-longer formula, so the forty-five days helps only a defendant served early; a defendant served later in the case gets thirty. These rules let the court allow a shorter or longer time and do not provide for the parties to stipulate one. Rule 33(a) allows thirty interrogatories as of right, each consisting of a single question, with leave to serve more granted upon a showing of necessity.

Mississippi Requirements for Motion to Compel

• The Certificate That Has To Be Incorporated in the Motion Itself

  UCRCCC 4.03(C) provides that no motion to compel shall be heard unless the moving party shall incorporate in the motion a certificate that movant has conferred in good faith with the opposing attorney in an effort to resolve the dispute and has been unable to do so. Uniform Chancery Court Rule 1.10(D) is in the same terms. Two points on the wording: it goes inside the motion rather than beside it, and it asks you to state that the dispute could not be resolved, not merely that you tried. M.R.C.P. 37(a) adds a second requirement, that the motion include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.

• A Verbatim Quotation of Every Contested Request, With Its Objection, Grounds and Reasons

  The same subdivision prescribes the body: motions to compel shall quote verbatim each contested request, the specific objection to the request, the grounds for the objection and the reasons supporting the motion. Build the motion as a sequence of those four elements, one block per disputed item. Attaching the discovery and the responses as exhibits and arguing generally is not what the rule asks for. Where the problem is an answer that arrived and says nothing, M.R.C.P. 37(a)(3) supplies the ground: an evasive or incomplete answer is to be treated as a failure to answer.

• Whether the Responses Were Laid Out the Way UCRCCC 4.03(B) Requires

  Before deciding which subdivision you are under, check the format. UCRCCC 4.03(B) and Uniform Chancery Court Rule 1.10(C) require the responding party, as part of the responses, to set forth immediately preceding the response the question or request to which such response is given, and provide that responses shall not be deemed to have been served without compliance. A complete, sworn set of answers laid out as a bare numbered list has therefore not been served, which moves the dispute to M.R.C.P. 37(d), the provision for a party that failed to serve answers or a written response at all. For requests for admission it meets Rule 36(a), under which the matter is admitted where nothing is served in time.

• The Ninety Day Discovery Window, Measured From Service of the Answer

  Mississippi sets no day count for the motion itself. UCRCCC 4.03(A) instead provides that all discovery must be completed within ninety days from service of an answer by the applicable defendant, and that additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Uniform Chancery Court Rule 1.10(A) carries the same ninety days and adds the fallback for a pleading to which no answer is required: absent a scheduling motion, discovery shall be completed ninety days from completion of service of process on all defendants. Record the date of the answer and the ninetieth day after it, and check any scheduling order the court has already entered.

• Proof That the Thirty Day or Forty Five Day Response Period Had Already Run

  Rule 33(b)(3) gives thirty days after service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons and complaint upon that defendant, and Rule 34(b)(ii)(A) is the same for production. Rule 36(a) makes the forty-five days a floor for a defendant rather than a choice. Mississippi uses no whichever-is-longer formula, so the longer period helps only a defendant served with discovery early in the case. The court may allow a shorter or longer time; these rules do not let the parties stipulate one. State the computation in the motion, because a motion filed before the period has run is premature.

• Which Rule Your Device Goes To, Because Requests for Admission Do Not Go to Rule 37

  M.R.C.P. 37(a)(2) reaches deposition questions under Rules 30 and 31, designations under Rules 30(b)(6) and 31(a), interrogatories under Rule 33, and inspection requests under Rule 34. Rule 36 is not in that list. For requests for admission the vehicle is inside Rule 36(a): the party who has requested the admissions may move to determine the sufficiency of the answers or objections, on which the court shall order an answer served unless an objection is justified, and may order either that the matter is admitted or that an amended answer be served. Rule 36(a) provides that Rule 37(a)(4) applies to the award of expenses incurred in relation to that motion.

• The Expense Request Under Rule 37(a)(4), and Your Own Exposure Under It

  Mississippi's fee provision is Rule 37(a)(4), not 37(a)(5). 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 the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the movant filed the motion before attempting in good faith to obtain the discovery without court action, the opposition was substantially justified, or other circumstances make an award unjust. If the motion is denied the same shall runs the other way. Note also that 37(a)(4) opens If the motion is granted and has no trigger for discovery produced after filing, so raise costs expressly rather than letting a motion be treated as moot.

• Filing and Notice Under UCRCCC 4.02, Including the Copy Mailed to the Presiding Judge

  M.R.C.P. 37(a) conditions the application on reasonable notice to other parties and all persons affected thereby, and the expense ruling under 37(a)(4) is made after opportunity for hearing. UCRCCC 4.02 governs the paperwork for all written motions in circuit and county court: the original of each motion and all supporting evidentiary documents are filed with the clerk in the county where the action is docketed, and the moving party at the same time mails a copy to the judge presiding in the action at the judge's mailing address, with responses filed in the same manner. Accompanying memoranda in support of a motion of this kind are encouraged but not required.