Montana Motion to Compel

Introduction

Key Things to Know

1. 1

   Montana splits into two tracks and the track decides whether there is a motion at all. On the ordinary track the motion asks the district court for an order compelling an answer, designation, production or inspection, under Mont. R. Civ. P. 37(a)(3)(A). On the Simplified Procedure track created by Uniform District Court Rule 6, which applies to civil actions in which a jury trial has been requested, UDCR 6(c)(6) provides that discovery disputes shall be resolved through telephonic or in-person hearings with the court and that written discovery motions are not permitted without leave of court. The election is made at the initial scheduling conference.

2. 2

   The Uniform District Court Rules, not Rule 37, tell you what the document has to look like. UDCR 2(a) is captioned Prerequisites to Filing a Motion and requires the text of the motion to state that other parties have been contacted and to state whether any party objects, with the word unopposed required in the title of an unopposed motion. UDCR 4(a) provides that discovery is not filed in Montana without leave, and that when any motion is filed referring to discovery the filing party shall submit with the motion the relevant unfiled documents. UDCR 1(c)(6) backs both up, because nonconforming papers may not be filed without leave of the court.

3. 3

   Silence decides Montana motions, in both directions. Under UDCR 2(b) the moving party files a supporting brief with the motion, the opposing party has fourteen days after service of that brief to answer, and the movant has fourteen days after the answer brief to reply. UDCR 2(c) then supplies the consequences: failure to file briefs may subject the motion to summary ruling, the moving party's failure to file a brief shall be deemed an admission that the motion is without merit, and failure to file an answer brief within the time allowed shall be deemed an admission that the motion is well taken. Under 2(e) the motion is deemed submitted when those limits expire unless oral argument is ordered, and 2(f) requires the movant to file a notice within five days of the last brief telling the court the matter is ready.

4. 4

   Expenses are mandatory in both directions and the exceptions are drafted as an instruction to the judge. Rule 37(a)(5)(A) provides that if the motion is granted, or if the requested discovery is provided after the motion was filed, the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses including attorney fees. Then: but the court must not order this payment if the movant filed before attempting in good faith to obtain the discovery without court action, the opposing party's response or objection was substantially justified, or other circumstances make an award unjust. Under 37(a)(5)(B) a denied motion is equally mandatory against the movant and the attorney filing it. The word shall does not appear anywhere in Montana's Rule 37.

5. 5

   You can make the judge take the discovery plan in hand. Mont. R. Civ. P. 26(f) says the court shall hold a conference on the subject of discovery upon motion by the attorney for any party if the motion includes six things: a statement of the issues as they then appear, a proposed plan and schedule of discovery, any limitations proposed, any issues about electronically stored information including the form in which it should be produced, any other proposed discovery orders, and a statement showing a reasonable effort to reach agreement with opposing attorneys on those matters. Objections or additions are due no later than fourteen days after service. The court then enters an order identifying the issues, establishing the plan and schedule, setting limitations and allocating expenses.

6. 6

   Requests for admission are outside the motion to compel in Montana. Rule 37(a)(3)(A) lists exactly four situations and all of them are Rules 30, 31, 33 and 34; Rule 36 is not among them. The vehicle is Rule 36(a)(6) instead, under which the requesting party may move to determine the sufficiency of an answer or objection, the court must order an answer served unless it finds an objection justified, and on finding that an answer does not comply it may order either that the matter is admitted or that an amended answer be served. That rule sends the expenses back, because Rule 37(a)(5) applies to an award of expenses on it.

7. 7

   No Montana rule sets a time limit for bringing the motion. What fixes your date is the scheduling order, and Rule 16(b) tells you how to get one and what it must contain. Upon request by a party, except in categories of actions exempted by district court rule, the judge must issue a scheduling order, and must do so as soon as practicable but in any event within ninety days of that request. The order must limit the time to join other parties, amend the pleadings, complete discovery and file motions, and under 16(b)(4) a schedule may be modified only for good cause and with the judge's consent. So the date that binds you is one a party can ask for and nobody can quietly move.

Montana Requirements for Motion to Compel

• Which Track the Case Is On, Because Simplified Procedure Bars the Written Motion

  Settle this first. Uniform District Court Rule 6 applies to all civil actions in which a jury trial has been requested, with the election made at the initial scheduling conference. UDCR 6(c)(6) then provides that discovery disputes shall be resolved through telephonic or in-person hearings with the court and that written discovery motions are not permitted without leave of court. On that track the route is a request for a hearing, or an application for leave, rather than a motion and briefs. The caps are tighter too: UDCR 6(c)(5) limits interrogatories and requests for production to twenty-five each including subparts and depositions to three per party.

• Which Rule Your Device Goes To, Because Requests for Admission Are Outside Rule 37(a)

  Mont. R. Civ. P. 37(a)(3)(A) lists four situations and they are confined to Rules 30, 31, 30(b)(6) or 31(a)(4), 33 and 34. Rule 36 is not in the list. For requests for admission the vehicle is Rule 36(a)(6), under which the requesting party may move to determine the sufficiency of an answer or objection, the court must order an answer served unless it finds an objection justified, and on finding non-compliance it may order either that the matter is admitted or that an amended answer be served. Rule 37(a)(5) applies to the expenses on that motion. Where the problem is an answer that arrived and says nothing, Rule 37(a)(4) is the ground: an evasive or incomplete answer or response must be treated as a failure to answer or respond.

• What the Text of the Motion Must State, and What Its Title Must Say

  UDCR 2(a), captioned Prerequisites to Filing a Motion, requires the text of the motion to state that other parties have been contacted and to state whether any party objects to the motion, and provides that when a motion is unopposed the word unopposed must appear in the title of the motion. Parties that have not yet appeared or whose default has been entered need not be contacted. Separately, Mont. R. Civ. P. 37(a)(1) requires the motion to be made on notice to other parties and all affected persons and to 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.

• The Unfiled Discovery You Have To Attach, Because Montana Does Not File It

  UDCR 4(a) provides that depositions upon oral or written examinations, interrogatories and answers, requests for production and responses, and requests for admission and responses shall not be filed without leave of court, and that when any motion is filed referring to discovery, the party filing the motion shall submit with the motion the relevant unfiled documents. So the requests and whatever came back have to travel with the motion. A supporting brief goes with it under UDCR 2(b), and UDCR 1(c)(6) provides that nonconforming papers may not be filed without leave of the court.

• The Fourteen Day Answer Clock and What Silence Is Deemed To Mean

  Under UDCR 2(b) the opposing party has fourteen days after service of the movant's brief to file an answer brief, and the movant fourteen days after that to reply. UDCR 2(c) supplies the consequences in both directions: failure to file briefs may subject the motion to summary ruling, the moving party's failure to file a brief shall be deemed an admission that the motion is without merit, and failure to file an answer brief within the time allowed shall be deemed an admission that the motion is well taken. Under 2(e) the motion is deemed submitted when the time limits expire unless oral argument is ordered.

• The Notice of Submission Due Five Days After the Last Brief

  UDCR 2(f) requires the moving party to file a notice with the court within five days after the filing of a reply brief, or if no reply brief is filed, within five days after the filing of all response briefs, advising the court that the matter is fully submitted and ready for decision, with a copy sent to the presiding judge's chambers. This is the step most often missed, and a motion that is technically submitted can sit without it. UDCR 2(d) separately provides that the court may order oral argument on its own motion or on application of a party for good cause shown.

• The Expense Request Under Rule 37(a)(5), and Your Own Exposure Under It

  Rule 37(a)(5)(A) is captioned If the Motion is Granted or Disclosure or Discovery is Provided After Filing, and it requires the court, after giving an opportunity to be heard, to order the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses including attorney fees. The exceptions are an instruction to the judge rather than an unless clause: but the court must not order this payment if the movant filed before attempting in good faith to obtain the discovery without court action, the opposing party's response or objection was substantially justified, or other circumstances make an award unjust. Under 37(a)(5)(B) a denied motion is equally mandatory against the movant and the attorney filing it, and the court may add a protective order.

• The Scheduling Order, Which Is Where Your Real Deadline Lives

  No Montana rule sets a time to bring the motion. Mont. R. Civ. P. 16(b)(1) provides that upon request by a party, except in categories of actions exempted by district court rule, the judge must issue a scheduling order, and 16(b)(2) requires it to issue as soon as practicable but in any event within ninety days of that request. Under 16(b)(3)(A) the order must limit the time to join other parties, amend the pleadings, complete discovery and file motions, so both your discovery cut-off and your motion cut-off sit in that one document. Under 16(b)(4) a schedule may be modified only for good cause and with the judge's consent, so the date cannot quietly slide.