Oklahoma Motion to Compel

Introduction

Key Things to Know

1. 1

   An Oklahoma motion to compel is an application under 12 O.S. Section 3237(A), made upon reasonable notice to other parties and all persons affected thereby, for an order compelling an answer, a designation, or inspection and copying. Section 3237(A)(2) lists what it reaches: a deponent who fails to answer under Section 3230 or 3231, an entity that fails to designate, a party that fails to answer an interrogatory under Section 3233, a party that fails to produce or permit inspection under Section 3234, and a party or witness who objects to inspection of materials designated in a Section 2004.1 subpoena. Section 3237(A)(3) adds that an evasive or incomplete answer is to be treated as a failure to answer.

2. 2

   The privilege log is the part that most often decides these motions in Oklahoma, and it is the court's to order rather than something the responding party owes automatically. Section 3237(A)(2) conditions it on the court determining, in its discretion, that a log is necessary in order to determine the validity of the claim. Once ordered it is served on all other parties and, unless otherwise ordered, must give for each document the author or authors, the recipient or recipients, its origination date, its length, the nature of the document or its intended purpose, and the basis for the objection. The same paragraph lets the court conduct an in camera review, and provides that if the court denies the motion in whole or in part it may make such protective order as it could have made under Section 3226(C).

3. 3

   Count the clock differently in Oklahoma, because it does not start when you serve. Interrogatories, production requests and requests for admission may each be served without leave of court once a petition is filed, and each carries thirty days to respond, but Section 3233(A) then says the 30-day response period shall not commence until an answer to the petition is filed, and Sections 3234(A)(2)(a) and 3236(A) say the same for production and requests for admission. The parties can agree otherwise in writing, or the court can order it. The practical consequence is direct: a motion counted from service while the answer to the petition is still outstanding is not ripe.

4. 4

   The expense award is mandatory both ways and Oklahoma gives the responding party one fewer way out than the federal provision does. Section 3237(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 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 unjust. Two escapes, not three, and the test is measured by the opposition to the motion rather than by the underlying response. If the motion is denied the same shall runs against the moving party or the attorney advising it.

5. 5

   Thirty interrogatories, and Oklahoma counts them asymmetrically. Section 3233(A) caps them at thirty and then provides that interrogatories inquiring as to the names and locations of witnesses, or the existence, location and custodian of documents or physical evidence, shall be construed as one interrogatory, while all other interrogatories, including subdivisions of one numbered interrogatory, shall be construed as separate interrogatories. Going past thirty means consulting opposing counsel and attempting a written stipulation first, and failing that, a motion showing that counsel have conferred in good faith but sincere attempts to resolve the issue have been unavailing, showing reasons establishing good cause, and setting forth the proposed additional interrogatories. Section 3236(A) caps requests for admission at thirty on the same terms.

6. 6

   Oklahoma has a statutory discovery master, which is a route worth knowing in a document-heavy case. Under 12 O.S. Section 3225.1 the court may, on a party's motion or its own and after a hearing unless waived, appoint one either to perform discovery duties the parties consent to or to address pretrial and posttrial discovery matters. Where it is the second ground, the appointing order shall contain three findings: that the appointment and referral are necessary in the administration of justice due to the nature, complexity or volume of the materials involved or other exceptional circumstances; that the likely benefit outweighs the burden or expense; and that the appointment will not improperly burden the rights of the parties to access the courts. Conflicts must be disclosed within fourteen days.

7. 7

   Two filing points to settle before drafting. The motion must include a statement that the movant has in good faith conferred or attempted to confer either in person or by telephone with the person or party failing to make the discovery, which prescribes the mode and not just the effort. And the forum is split: Section 3237(A)(1) says an application for an order to a party may be made to the court in which the action is pending, or on deposition matters to the district court in the county where the deposition is being taken, while an application for an order to a deponent who is not a party shall be made to the district court in the county where the deposition is being taken or to the court in which the action is pending.

Oklahoma Requirements for Motion to Compel

• The Privilege Log, and the Six Things Section 3237(A)(2) Makes It Carry

  Where privilege or other protection is claimed in response to a request or subpoena for documents, and the court determines in its discretion that a log is necessary to test the validity of the claim, the court shall order the party claiming the privilege to prepare and serve one, on the terms the court deems appropriate, served on all other parties. Unless otherwise ordered it must give, as to each document, the author or authors, the recipient or recipients, its origination date, its length, the nature of the document or its intended purpose, and the basis for the objection. Because the log is ordered rather than owed automatically, the motion should explain why the claim cannot be tested without it. The court may also conduct an in camera review.

• The Date the Answer to the Petition Was Filed, Which Starts the Clock

  Oklahoma suspends the response period until the pleadings are joined. Section 3233(A) provides that the 30-day response period shall not commence until an answer to the petition is filed, and Sections 3234(A)(2)(a) and 3236(A) say the same for production and requests for admission. So record the date of service of your request and, separately, the date the answer to the petition was filed, and count from the later one. The parties can agree in writing under Section 3229, or the court can order on leave, that answers be required earlier. A motion filed before that period has run is not ripe, and the expense provision is mandatory against a movant whose motion is denied.

• The Conferral Statement, With the Mode the Statute Prescribes

  Section 3237(A)(2) provides that the motion must include a statement that the movant has in good faith conferred or attempted to confer either in person or by telephone with the person or party failing to make the discovery in an effort to secure the information or material without court action. Note that Oklahoma prescribes the mode and not merely the effort, so record which one you used and when. The statute frames this as a required component of the motion rather than as a separate certificate, and the same in-person-or-by-telephone formula appears at Section 3226.1(A) on the other side of the dispute.

• Which District Court the Application Goes To

  Section 3237(A)(1) splits the forum and changes verb between the limbs. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the district court in the county where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the district court in the county where the deposition is being taken or to the court in which the action is pending. Record which court you are using and why. The application itself must be made upon reasonable notice to other parties and all persons affected thereby.

• The Interrogatory Count, Under Oklahoma's Asymmetric Rule

  Section 3233(A) caps interrogatories at thirty, then counts them two ways: interrogatories inquiring as to the names and locations of witnesses, or the existence, location and custodian of documents or physical evidence, shall be construed as one interrogatory, while all other interrogatories, including subdivisions of one numbered interrogatory, shall be construed as separate interrogatories. Past thirty, no further interrogatories will be served unless authorized by the court, and the route is a motion showing that counsel have conferred in good faith but sincere attempts to resolve the issue have been unavailing, showing reasons establishing good cause, and setting forth the proposed additional interrogatories. Section 3236(A) caps requests for admission at thirty on the same terms.

• The Expense Request Under Section 3237(A)(4), and the Two Escapes

  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 court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Two escapes, and substantial justification is measured by the opposition to the motion rather than by the underlying response. If the motion is denied the same shall runs against the moving party or the attorney advising it, so weigh the weak items out before filing. On a split result the court may apportion.

• Whether a Discovery Master Would Suit the Case

  12 O.S. Section 3225.1 lets the court, on a party's motion or its own and after a hearing unless waived, appoint a discovery master to perform discovery duties the parties consent to, or to address pretrial and posttrial discovery matters to facilitate effective and timely resolution. On that second ground the appointing order shall contain three findings: that the appointment and referral are necessary in the administration of justice due to the nature, complexity or volume of the materials involved or other exceptional circumstances; that the likely benefit outweighs the burden or expense, considering the needs of the case, the amount in controversy, the parties' resources and the importance of the issues; and that the appointment will not improperly burden the rights of the parties to access the courts. Conflicts must be disclosed within fourteen days of appointment.

• The Discovery Cut-Off in Your Own Case

  The Oklahoma Discovery Code sets no period for bringing this motion and no provision under which delay gives up the right to compel. The date that binds you therefore comes from outside the statute: the scheduling order entered in your case, and the Rules for District Courts of Oklahoma together with any rules of the district court where the case is pending. Read both before assuming a window is open. Allow time for the court to order a privilege log, to review documents in camera if it decides to, and to give the responding party a compliance date, because all of that has to fit inside the discovery period the case is working to.