New Mexico Motion to Compel

Introduction

Key Things to Know

1. 1

   Two New Mexico motions divide work that most states give to one, so settle which device you are arguing about first. A motion for order compelling discovery under Rule 1-037(A) NMRA asks the district court for an order compelling an answer, a designation or an inspection, and subparagraph (A)(2) lists exactly four triggers: a deponent who fails to answer a question propounded or submitted under Rule 1-030 or 1-031, an entity that fails to make a designation, a party who fails to answer an interrogatory submitted under Rule 1-033, and a party who in response to a Rule 1-034 inspection request fails to respond that inspection will be permitted or fails to permit it. Requests for admission are not among them, and they go to Rule 1-036(A). Subparagraph (A)(3) adds that for purposes of Paragraph A an evasive or incomplete answer is to be treated as a failure to answer.

2. 2

   Rule 1-037(A)(4) prescribes what the motion document must contain, and it is two things rather than one. The motion shall state that counsel has made a good faith effort to resolve the issue with opposing counsel prior to filing a motion to compel discovery. And the motion shall set forth or have attached the interrogatory or the request for production or admission, and any response thereto. New Mexico has no separate statement and no statement of discovery issues; this is where the itemization lives. A motion that quotes the request only inside the argument has not set it forth or attached it with the response.

3. 3

   Two clocks sit in the same sentence in each of the three written-discovery rules, and against a newly served defendant the longer one usually governs. Rule 1-033(C)(3) NMRA requires answers and objections within 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 on that defendant. Rule 1-034(B) carries the same pair for production, and Rule 1-036(A) provides that unless the court shortens the time a defendant is not required to serve answers or objections before forty-five days after service of process. Because Rule 1-033(B) lets interrogatories be served on a party with or after service of the summons and complaint, a defendant served with everything at once is on the forty-five day clock. Run both and take whichever has not yet arrived.

4. 4

   Fifty is the interrogatory ceiling and the subparts are inside it. Rule 1-033(A) permits any party, without leave of court or written stipulation, to serve written interrogatories not exceeding fifty in number including all discrete subparts. Leave to serve more is not at large: the rule says leave shall be granted to the extent consistent with the principles of Rule 1-026(B)(2). Count the set before you complain about the answers, because an over-the-cap set is itself a reason the other side was not obliged to answer everything in it.

5. 5

   New Mexico's production rule, as amended for cases pending or filed on or after December 31, 2021, requires the responder to show its hand. Rule 1-034(B) provides that the responding party shall state whether the response includes all responsive materials, and that if the responding party withholds any responsive materials based on an objection, the objection shall clearly describe with reasonable particularity what materials are being withheld for each objection. The same subdivision names the route in terms: the party submitting the request may move for an order under Rule 1-037 with respect to any objection to, or other failure to respond to all or any part of the request, or any failure to permit inspection.

6. 6

   The expense award is mandatory both ways, reaches advising counsel, and carries a hearing condition the federal text does not. Rule 1-037(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 the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied the same mandatory verb runs against the moving party or the attorney advising it or both, on the mirror exceptions. On a split result the court may apportion.

7. 7

   Where nothing at all was served, Paragraph D is a separate route that skips the compel order. Rule 1-037(D) applies where a party fails to appear for its own deposition after proper notice, fails to serve answers or objections to interrogatories after proper service, or fails to serve a written response to a Rule 1-034 request after proper service, and it lets the court make such orders as are just, including the sanctions authorized by Rule 1-037(B)(2)(a) to (c), on motion and without any prior order compelling discovery. Paragraph D also closes the usual escape: the failure may not be excused on the grounds that the discovery sought is objectionable unless the party failing to act has applied for a protective order under Rule 1-026.

New Mexico Requirements for Motion to Compel

• Confirmation That the Thirty or Forty-Five Day Period Has Actually Run

  Rule 1-033(C)(3) NMRA requires answers and objections within 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 on that defendant. Rule 1-034(B) carries the same pair for production, and Rule 1-036(A) provides that unless the court shortens the time a defendant is not required to serve answers or objections before forty-five days after service of process. Because Rule 1-033(B) permits service on a party with or after service of the summons and complaint, a defendant served with everything at once is on the forty-five day clock. Record both service dates and the arithmetic in the motion.

• The Good Faith Statement Required by Rule 1-037(A)(4)

  Rule 1-037(A)(4) NMRA provides that any motion filed pursuant to that paragraph shall state that counsel has made a good faith effort to resolve the issue with opposing counsel prior to filing a motion to compel discovery. It is a statement in the motion rather than a separate document. Note what the rule does not do: it prescribes the statement and states no penalty for omitting it, and New Mexico does not carry the federal escape hatch that bars a fee award where the movant filed before attempting in good faith to obtain the discovery. The granted-motion branch of Rule 1-037(A)(4) lists two exceptions, not three.

• The Requests and Responses Set Forth in or Attached to the Motion

  Rule 1-037(A)(4) NMRA provides that a motion filed pursuant to that paragraph shall set forth or have attached the interrogatory or the request for production or admission, and any response thereto. Both halves are required, so the court can read the request and the response without relying on your characterisation of either. The rule gives you the choice of reciting them in the body or attaching them. New Mexico prescribes no separate statement and no statement of discovery issues, so this is the whole of the itemization duty, and a motion that quotes the request only inside the argument has not complied with the text.

• The Interrogatory Count, Capped at Fifty Including All Discrete Subparts

  Rule 1-033(A) NMRA permits any party, without leave of court or written stipulation, to serve written interrogatories not exceeding fifty in number including all discrete subparts. Subparts count individually, so a short numbered list can exceed the cap. Leave to serve additional interrogatories is not at the court's bare discretion: the rule provides that leave shall be granted to the extent consistent with the principles of Rule 1-026(B)(2). Count the set before moving, because a set served over the cap without leave or a written stipulation was not one the responding party was obliged to answer in full.

• A Check on Whether the Dispute Belongs to Rule 1-036 Instead

  Requests for admission are absent from Rule 1-037(A)(2)'s list of four triggers. If nothing was served, Rule 1-036(A) provides that the matter is admitted unless a written answer or objection addressed to the matter, signed by the party or by the attorney, is served in time, so there is no order to seek. If an answer or objection was served and is inadequate, the vehicle is Rule 1-036(A)'s motion to determine the sufficiency of the answers or objections: unless the court determines an objection is justified it shall order that an answer be served, and if an answer does not comply with the rule the court may order either that the matter is admitted or that an amended answer be served, or may defer final disposition to a pretrial conference or a designated time before trial. That rule applies Rule 1-037(A)(4) to the award of expenses.

• An Objection-by-Objection Note on Withheld Material

  Rule 1-034(B) NMRA, as amended effective for all cases pending or filed on or after December 31, 2021, requires the responding party to state whether the response includes all responsive materials, and requires that if the responding party withholds any responsive materials based on an objection, the objection shall clearly describe with reasonable particularity what materials are being withheld for each objection. The duty is per objection. The same subdivision requires specific reasons for each objection, requires the part objected to be specified where an objection reaches only part of an item or category, and requires a responding party objecting to the form for electronically stored information to state the form it intends to use. On interrogatories, add Rule 1-033(C)(4): grounds shall be stated with specificity and any ground not stated in a timely objection is waived unless excused for good cause.

• A Decision Between Paragraph A and Paragraph D

  Rule 1-037(D) NMRA is a separate track for a party that failed to appear for its own deposition after proper notice, failed to serve answers or objections to interrogatories after proper service, or failed to serve a written response to a Rule 1-034 request after proper service. On motion the court in which the action is pending may make such orders in regard to the failure as are just, including any action authorized under Rule 1-037(B)(2)(a) to (c), with no prior order compelling discovery. Paragraph D also provides that the failure may not be excused on the grounds that the discovery sought is objectionable unless the party failing to act has applied for a protective order under Rule 1-026. Paragraph D reaches a total failure; a thin or evasive response stays in Paragraph A because Rule 1-037(A)(3) treats it as a failure to answer there.

• The Expense Request, With the Hearing Condition and the Two Exceptions

  Rule 1-037(A)(4) NMRA 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 the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Only those two exceptions appear on the granted-motion branch. If the motion is denied the same mandatory verb runs against the moving party or the attorney advising it or both, and on a split result the court may apportion the reasonable expenses in a just manner. The phrase after opportunity for hearing is an express condition in both limbs. Attach a statement of the amount claimed.