North Carolina Motion to Compel

Introduction

Key Things to Know

1. 1

   In the North Carolina Business Court the motion comes last, not first. BCR 10.9(a) applies the rule to motions under Rules 26 through 37 and Rule 45 of the Rules of Civil Procedure, and extends its vocabulary so that references to a party include non-parties subject to subpoena under Rule 45. BCR 10.9(b)(1) then requires a thorough attempt, made in good faith, to resolve or narrow the dispute, then an e-mailed summary capped at 700 words. Any other party may e-mail a response, also capped at 700 words, within seven calendar days of the initial summary, and no replies are allowed. BCR 1.2 confines all of this to cases designated a mandatory complex business case or assigned to a Business Court judge under Rule 2.1 of the General Rules of Practice.

2. 2

   The Business Court certificate has four prescribed contents and a word limit. BCR 10.9(b)(2) requires the dispute summary to include a certification that, after personal consultation and diligent attempts to resolve differences, the parties could not resolve the dispute. The certificate must state the dates of the conference, which attorneys participated, and the specific results achieved, and must say, if applicable, whether the parties discussed cost-shifting, proportionality or alternative discovery methods that might resolve the dispute. It may not exceed 300 words, and it does not count against the summary's 700. A responding party may add a reply to the substance of the certificate not exceeding 200 words.

3. 3

   The judge may dispose of the whole thing on the telephone. BCR 10.9(b)(3) provides that after the summary, certificate and any responses are submitted, the Court may schedule a telephone conference with counsel, order the parties to file a motion and brief, or issue an order deciding the issues raised, and that if it elects to hold the conference it may decide the dispute during it. BCR 10.9(c) then provides that only if the parties still cannot resolve the dispute after that conference, or the Court declines to rule, may a party file a discovery motion, with the supporting and responsive briefs each capped at 3,750 words unless the Court orders otherwise and replies permitted only on the Court's own initiative or for good cause. BCR 10.9(e) keeps a separate route open for a dispute arising mid-deposition: an immediate ruling by telephone.

4. 4

   Outside the Business Court the motion is Rule 37(a)(2), which in North Carolina is a statute. It applies where a deponent fails to answer a question propounded or submitted under Rules 30 or 31, an entity fails to make a designation under Rule 30(b)(6) or 31(a), a party fails to answer an interrogatory submitted under Rule 33, or a party in response to a Rule 34 inspection request fails to respond that inspection will be permitted or fails to permit it. The motion must include a certification about the attempt to secure the material without court action. Rule 37(a)(3) adds that an evasive or incomplete answer is to be treated as a failure to answer.

5. 5

   Fifty is the interrogatory ceiling and North Carolina counts harder than the federal rule. Rule 33(a) says a party may direct no more than 50 interrogatories, in one or more sets, to any other party, and then removes the usual argument: interrogatory parts and subparts shall be counted as separate interrogatories for purposes of the rule. There is no discreteness test to litigate. The relief valve is unusually easy, though: more are allowed on leave granted by the court for good cause shown or by agreement of the other party, so the opposing side can lift the cap without a judge.

6. 6

   A North Carolina defendant served with discovery at the outset is on a clock measured from service of process, and there are two different numbers. Rule 33(a) gives answers within 30 days after service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint. Rule 34(b) carries the same 45 days for a document response. But Rule 36(a) gives requests for admission a 60-day floor: unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 60 days after service of process. Rule 36(a) also puts a signalling duty on the requesting party: if the request is served with the summons and complaint, the summons shall so state.

7. 7

   The expense award is mandatory but it does not reach the other side's lawyer, which is a real departure. 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 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 opposition was substantially justified or other circumstances make an award unjust. Read the payer list: it is the party advising the conduct, not the attorney advising it. On a denied motion the same mandatory verb runs against the moving party alone, with no attorney named at all. On a split result the modal drops to may and the court may apportion.

North Carolina Requirements for Motion to Compel

• A Decision on Whether BCR 10.9 Applies Before You Draft a Motion at All

  BCR 1.2 sets the boundary: the Business Court Rules govern every civil action that is designated as a mandatory complex business case or assigned to a Business Court judge under Rule 2.1 of the General Rules of Practice. That is a designated docket within the Superior Court Division and not every superior court case, so check the designation rather than assume. If the case is in it, BCR 10.9(b)(1) bars filing a discovery motion until the e-mailed dispute summary has gone to the judicial assistant and law clerk for the presiding judge and to opposing counsel, and BCR 10.9(c) makes a motion available only after the Court's telephone conference or a decision not to rule. BCR 10.9(a) applies the rule to motions under Rules 26 through 37 and Rule 45, and treats non-parties subject to subpoena under Rule 45 as parties for its purposes.

• The 700-Word Dispute Summary, If the Case Is in the Business Court

  BCR 10.9(b)(1) requires a thorough attempt, in good faith, to resolve or narrow the dispute first, and then an e-mailed summary of it to the judicial assistant and law clerk for the presiding Business Court judge and to opposing counsel. The summary may not exceed 700 words, and the BCR 10.9(b)(2) certificate does not count against that limit. Any other party may e-mail a response of up to 700 words, excluding its response to the certificate, within seven calendar days of when the initial summary went out, and the rule states that no replies are allowed. Word limits are calculated under BCR 7.8. Draft for the limit from the start: there is no second bite.

• The 300-Word Certificate, With Its Four Prescribed Contents

  BCR 10.9(b)(2) requires the dispute summary to include a certification that, after personal consultation and diligent attempts to resolve differences, the parties could not resolve the dispute. The certificate must state the dates of the conference, which attorneys participated, and the specific results achieved, and must say, if applicable, whether the parties discussed cost-shifting, proportionality or alternative discovery methods that might resolve the dispute. It may not exceed 300 words, and a responding party may add up to 200 words on its substance. Note that specific results achieved is a demanding phrase: a certificate recording that a letter was sent does not state a result.

• The Statewide Rule 37(a)(2) Certification

  Outside the Business Court the statewide duty is a single sentence inside the rule that authorizes the motion. Rule 37(a)(2) requires the motion to carry a certification, in the rule's words, that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. It goes in the motion rather than alongside it. The rule states the duty in mandatory terms and prescribes no penalty for omitting it, so no consequence is claimed here. Note also that North Carolina's expense provision carries only two escape hatches rather than the federal three, and the missing one is the federal escape for a movant who filed before attempting in good faith; the certification requirement does that work instead.

• The Interrogatory Count, With Every Part and Subpart Counted Separately

  Rule 33(a) provides that a party may direct no more than 50 interrogatories, in one or more sets, to any other party, except upon leave granted by the Court for good cause shown or by agreement of the other party, and that interrogatory parts and subparts shall be counted as separate interrogatories for purposes of the rule. There is no discreteness test, so a short numbered list with lettered subparts can exceed the cap. Count the set as the rule counts it before moving, because a set served over the cap without leave or agreement was not one the responding party had to answer in full. Where more are needed, the other party's written agreement is an alternative to a motion.

• The Right Clock: 30 Days, 45 From Process, or 60 for Admissions

  Rule 33(a) requires answers and objections within 30 days after service of the interrogatories, except that a defendant may serve within 45 days after service of the summons and complaint. Rule 34(b) carries the same 45 days for a written response to a document request. Rule 36(a) is different and is where movants miscount: unless the court shortens the time, a defendant shall not be required to serve answers or objections to requests for admission before the expiration of 60 days after service of the summons and complaint. Rule 36(a) also requires that if the request is served with service of the summons and complaint, the summons shall so state. Record both service dates and the arithmetic in the motion. All three rules let the court allow a shorter or longer time.

• The Form of the Responses You Received

  North Carolina prescribes no separate statement, and instead regulates the shape of the discovery papers themselves. Rules 33(a), 34(b) and 36(a) each require the serving party to leave sufficient space following each interrogatory or request in which the respondent may state the response, and require the respondent either to state the response in that space, using additional pages if necessary, or to restate the item and follow it with the response. An objection is to be made by stating the objection and the reason for it either in the space following the item or following the restated item, which is not where a general objection preamble sits. The rules state no consequence for ignoring that format, so note the non-compliance and argue the substance; do not claim a sanction the rule does not provide.

• The Expense Request, and Who It Can and Cannot Reach

  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 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 the opposition was substantially justified or that other circumstances make an award of expenses unjust. The payer is the party advising the conduct, not the attorney advising it. If the motion is denied the same mandatory verb runs against the moving party alone. If it is granted in part and denied in part the court may apportion, which converts the mandatory award into a discretionary one. A separate provision does reach counsel on a different trigger: Rule 37(g) provides that if a party or the party's attorney fails to participate in good faith in the framing of a discovery plan by agreement as required by Rule 26(f), the court may require that party or attorney to pay another party the reasonable expenses caused by the failure. Attach a statement of the amount claimed.