Rhode Island Motion to Compel Discovery or More Responsive Answers

Introduction

Key Things to Know

1. 1

   A Rhode Island motion to compel discovery asks the Superior Court for an order compelling an answer, a designation, or production or inspection under Rule 37(a)(2), and it is unusual in reaching the calendar only if someone objects. Rule 7(b)(3) deems the listed motions granted as a matter of course unless an objection stating the particular ground is served and filed at least three days before the hearing time. Read the words particular ground: a general statement that the motion is opposed is not what the rule asks for.

2. 2

   Rule 7(b)(3)'s first sentence is the filing floor and people miss it. The motion and the notice of the hearing of that motion shall be served and filed not later than ten days before the time specified for the hearing. Its last sentence is the trap: the provisions of Rule 6(d) shall not apply to this subdivision. Rule 6(d) is what adds one day when a paper is served electronically or by mail, so for both the ten days and the three days you count the plain calendar days.

3. 3

   The motion carries one prescribed content element. Rule 7(b)(3)'s final paragraph provides that a motion to compel discovery or more responsive answers thereto shall specify the number of days for compliance. Put a number in the motion and in the proposed order. Rule 7(b)(1) separately requires the motion to be in writing, to state with particularity the grounds, and to set forth the relief or order sought, and Rule 7(b)(5) requires it to be signed under Rule 11. There is no itemized statement or statement of discovery issues to prepare.

4. 4

   Rule 37(a)(4) is discretionary, and that matters before you file. If the motion is granted, or if requested discovery is provided after the motion was filed, the court may, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising that conduct, to pay the moving party's reasonable expenses including attorney's fees, subject to three findings that excuse it. If the motion is denied the same may runs against you on two findings. So winning does not entitle you to your expenses and losing does not guarantee you pay them.

5. 5

   The order you ask for can carry its own consequence, which is rare and worth drafting toward. Rule 37(a)(4)(A) provides that an order compelling discovery may expressly provide for entry of a final judgment dismissing the underlying claim or entry of a default judgment against the nonmoving party if the order is not complied with within thirty days, or such shorter or longer time as the court may order or as the parties may stipulate. That is a provision written into the compel order itself rather than a later application.

6. 6

   The response clock is 40 days in Rhode Island, and the exceptions do not all run the way people expect. Rule 33(a) gives 40 days after service of the interrogatories with no variation for a defendant. Rule 34(b)(2) gives 40 days after service of the request, except that a defendant may respond within 60 days after service of the summons, complaint, Language Assistance Notice and all other required documents. Rule 36(a) gives 30 days on a request for admission, with a 45-day floor for a defendant on that same measure, and the matter is admitted on expiry with nothing to file. Rule 33(a) also runs the early-service rule backwards: it is the plaintiff who needs leave of court to serve interrogatories within 60 days after service of process on the defendant.

7. 7

   Two Rule 33 provisions change what a motion is for. An objection does not merely preserve a point, it postpones the answer: Rule 33(a) provides that answers to interrogatories to which objection is made may be deferred until an order to answer is entered in accordance with Rule 37(a) upon motion of the interrogating party, so getting the order is the ordinary next step rather than an escalation. And Rule 33(c) puts a hard outer date on correcting an answer, requiring amended answers within a reasonable time but not later than 30 days before the day fixed for trial, with later amendments allowed only on motion.

Rhode Island Requirements for Motion to Compel

• The Hearing Time, and the Tenth and Third Days Counted Back From It

  Rule 7(b)(3) measures everything from the time specified for the hearing. The motion and the notice of that hearing must be served and filed not later than ten days before it. The motion is then deemed to be granted as a matter of course, and is not placed on the motion calendar, unless an objection stating the particular ground is served and filed at least three days before it. Count both straight: the subdivision ends by providing that Rule 6(d) shall not apply, so the extra day Rule 6(d) gives for electronic service or mail is switched off here.

• The Number of Days for Compliance, Stated in the Motion

  Rule 7(b)(3)'s final paragraph provides that a motion to compel discovery or more responsive answers thereto shall specify the number of days for compliance. It is the one content element Rhode Island prescribes for this motion, and it matters more here than it would elsewhere, because a motion nobody objects to is deemed granted as filed. Put the same number in the proposed order.

• Which Device You Served, Because Rule 37(a)(2) Does Not Reach All of Them

  Rule 37(a)(2) names a deposition question under Rules 30 and 31, a designation under Rule 30(b)(6) or 31(a), an interrogatory under Rule 33, and a request for production or inspection under Rule 34. Rule 36 is not among them. A request for admission is simply admitted under Rule 36(a) if no written answer or objection is served in time, so there is nothing to compel. Rule 37(a)(3) supplies the ground where paper did arrive: an evasive or incomplete answer or response is to be treated as a failure to answer or respond.

• Whether Rule 81(b) Switched Discovery Off in Your Case

  Rule 81(b) provides that the provisions of Rules 26 through 37, relative to discovery, shall not be applicable to actions certified on appeal from the District Court except upon order issued on notice and a showing that lack of discovery will result in an injustice or undue hardship. In that class of case the application you need is for leave, not to compel. Note the saving provision in the same subdivision: material obtained by the use of discovery processes in the District Court may be used at the trial of such appeals as if the discovery had taken place in the Superior Court.

• Proof That the Response Period Had Run, Measured the Right Way for the Device

  Rule 33(a) gives 40 days after service of the interrogatories, with no variation for a defendant. Rule 34(b)(2) gives 40 days after service of the request, except that a defendant may respond within 60 days after service of the summons, complaint, Language Assistance Notice and all other required documents. Rule 36(a) gives 30 days on a request for admission with a 45-day floor for a defendant on that same measure. State the computation, because the measuring stick changes with the device and with who is answering. No Rhode Island rule sets a period within which this motion must be brought.

• Whether the Objections Were Served in Time, and What Follows if They Were

  Rule 33(a) requires specific written objections to particular interrogatories, stating the grounds on which they are based, served with the party's answers, and requires the party to answer to the extent the interrogatory is not objectionable. Failure to serve such objections within the time prescribed shall constitute a waiver thereof. If the objections were in time, note what the same subdivision then allows: answers to interrogatories to which objection is made may be deferred until an order to answer is entered in accordance with Rule 37(a) upon motion of the interrogating party. The order is therefore the thing that restarts the clock.

• The Proposed Order, and Whether It Is to Carry a Dismissal or Default Clause

  Rule 37(a)(4)(A) provides that an order compelling discovery may expressly provide for entry of a final judgment dismissing the underlying claim or entry of a default judgment against the nonmoving party if the order is not complied with within thirty days, or such shorter or longer time as the court may order or as the parties may stipulate. That clause lives in the compel order, so the proposed order you file is where it either appears or does not. Nothing requires the court to include it, and attorney review is available as an option on wording of this weight.

• The Expenses Request, Noting That the Award Is Discretionary Both Ways

  Rule 37(a)(4)(A) provides that on a granted motion, or where requested discovery is provided after the motion was filed, the court may require the party or deponent whose conduct necessitated the motion, or the party or attorney advising that conduct, to pay the movant's reasonable expenses including attorney's fees, unless the motion was filed without a prior good faith effort to obtain the discovery without court action, or the nondisclosure, response or objection was substantially justified, or other circumstances make an award unjust. 37(a)(4)(B) runs the same discretionary may against a losing movant on two findings, and 37(a)(4)(C) lets the court apportion on a split result. Ask for the expenses and support the amount, but do not count on them.