Washington Motion to Compel

Introduction

Key Things to Know

1. 1

   A Washington motion to compel is an application under CR 37(a)(2) for an order compelling an answer, a designation or an inspection, reaching a deponent who will not answer under rules 30 or 31, an entity that will not designate under rule 30(b)(6) or 31(a), a party that will not answer an interrogatory under rule 33, and a party that will not permit inspection under rule 34. CR 37(a)(3) treats an evasive or incomplete answer as a failure to answer. CR 37(a)(1) fixes the forum: an application against a party may go to the court where the action is pending or, on deposition matters, the county where the deposition is being taken, while an application to a deponent who is not a party shall be made in the county where the deposition is being taken.

2. 2

   CR 26(i) is the provision that decides whether your motion gets heard at all, and it is worded as a restriction on the court: the court will not entertain any motion or objection with respect to rules 26 through 37 unless counsel have conferred with respect to the motion or objection. Three details follow from the same subsection. Counsel for the moving or objecting party shall arrange a mutually convenient conference, whether in person or by telephone or by other remote means. Any motion seeking an order to compel discovery or obtain protection shall include counsel's certification that the conference requirements of the rule have been met. And where counsel has willfully refused or failed to meet in good faith, the court may apply the sanctions provided under rule 37(b).

3. 3

   CR 26(f) gives Washington a second and more structured route when the fight is really about the shape of discovery rather than one answer. The court may direct the attorneys to attend a conference on the subject of discovery, and it shall do so on a party's motion if that motion includes five things: a statement of the issues as they then appear, a proposed plan and schedule of discovery, any limitations proposed to be placed on discovery, any other proposed orders with respect to discovery, and a statement showing a reasonable effort to reach agreement with opposing attorneys. Objections or additions are due not later than 10 days after service of the motion, and afterwards the court shall enter an order identifying the issues, setting a plan and schedule, setting limitations and allocating expenses.

4. 4

   Read CR 37(a)(4) before filing. 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, to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney fees. If it is denied the same sentence runs against the moving party or the attorney advising the motion. Washington writes two escapes, substantial justification and other circumstances making an award unjust, and on a split result the court may apportion. Note the structural reason there is no third escape here: CR 26(i) already bars a motion brought without the conference.

5. 5

   Count the response period before you file, because the application is premature until it has run. CR 33(a) gives 30 days after service of the interrogatories, CR 34(b)(3)(A) the same for a request for production, and CR 36(a) the same for requests for admission. The defendant variant is the number to watch: a defendant may answer within 40 days after service of the summons and complaint, and for admissions CR 36(a) writes it as a floor, providing that unless the court shortens the time a defendant shall not be required to serve answers or objections before the expiration of 40 days after service of the summons and complaint. CR 33(a) also lets the parties stipulate, or any party move under rule 37(a).

6. 6

   Two Washington requirements govern the shape of the discovery itself, and both can decide what your motion is really about. CR 33(a) provides that interrogatories shall be so arranged that after each separate question there shall appear a blank space reasonably calculated to enable the answering party to place the written response, and that a responding party using separate pages shall clearly denote the number of the question to which each response relates, including the subpart. CR 36(a) states flatly that requests for admission shall not be combined in the same document with any other form of discovery. CR 33(b) also blocks two common objections, providing that an interrogatory is not objectionable merely because it involves an opinion or contention relating to fact or the application of law to fact, nor merely because the propounding party may have other access to the information.

7. 7

   Washington's civil rules set no number of days within which the motion itself must be brought, and attach no waiver to delay, so the dates that bind you come from your own case file and your county. CR 16 lets the court direct a pretrial conference in its discretion and provides that the resulting order controls the subsequent course of the action unless modified at trial to prevent manifest injustice, and it lets the court establish a pretrial calendar by rule. CR 40(b) then hands the scheduling machinery down expressly: each superior court may provide by local rule for placing actions upon the trial calendar, without request of the parties, upon request and notice, or in such other manner as the court deems expedient. So read your county's local rules and the case schedule in your file alongside these.

Washington Requirements for Motion to Compel

• Compliance With CR 26(i), Shown on the Face of the Motion

  CR 37(a) opens the application with the words upon a showing of compliance with rule 26(i), and CR 26(i) provides that the court will not entertain any motion or objection with respect to rules 26 through 37 unless counsel have met with respect to it. Counsel for the moving party arranges a mutually convenient conference, in person or by telephone or by other remote means, and the motion shall include counsel's certification that the conference requirements of the rule have been met. There is no alternative in the rule for a conference that did not happen, so record the date, the format and who took part.

• The Court the Application Belongs In, Under CR 37(a)(1)

  CR 37(a)(1) is captioned Appropriate Court. 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 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 court in the county where the deposition is being taken. CR 37(b)(1) splits contempt along the same line.

• The Date the 30-Day or 40-Day Response Period Ran Out

  CR 33(a) requires interrogatory answers and objections within 30 days after service of the interrogatories, except that a defendant may serve them within 40 days after service of the summons and complaint. CR 34(b)(3)(A) sets the same pair for a request for production, and CR 36(a) writes the 40 days as a floor the court may shorten. State the computation, because the application is premature until the period has run, and note any stipulation, which CR 33(a) and CR 34(b)(3)(A) both permit.

• Which Device You Served, Because Admissions Have Their Own Vehicle and Their Own Form Rule

  CR 37(a)(2) reaches a deposition question under rules 30 or 31, an entity designation under rule 30(b)(6) or 31(a), an interrogatory under rule 33, and a request for inspection under rule 34. For requests for admission CR 36(a) supplies a motion to determine the sufficiency of the answers or objections instead, and the same subsection provides that requests for admission shall not be combined in the same document with any other form of discovery, so check how yours were served before you rely on them.

• Each Interrogatory or Request by Number, With the Response Returned to It

  No statewide Washington rule prescribes a separate statement or an itemized statement for this motion, so the organisation is yours. Identify each item by number, set out the response or objection, and say why an order should issue as to each, so the order you ask the court to sign can be complied with and enforced. Washington's county superior courts set their own motion practice by local rule, including page limits, note-up procedure and working copies, so read those alongside the civil rules.

• Any Reliance on the CR 33 Form and Scope Provisions

  CR 33(a) provides that interrogatories shall be so arranged that after each separate question there shall appear a blank space reasonably calculated to enable the answering party to place the written response, and that a responding party using separate pages shall clearly denote the number of the question to which each response relates, including the subpart. CR 33(b) adds that an interrogatory otherwise proper is not necessarily objectionable merely because an answer involves an opinion or contention relating to fact or the application of law to fact, nor objectionable merely because the propounding party may have other access to the information.

• Whether a Total Failure Puts You on the CR 37(d) Route Instead

  Where the other side served nothing at all, CR 37(d) lets the court make such orders in regard to the failure as are just and, among others, take any action authorized under sections (A), (B) and (C) of subsection (b)(2) without a prior order compelling anything. Its expense clause is mandatory against the party failing to act or the attorney advising the party or both, and it provides that the failure may not be excused on the ground that the discovery sought is objectionable unless that party has applied for a protective order under rule 26(c). Note the wording shift: CR 37(d) treats an evasive or misleading answer as a failure to answer, where CR 37(a)(3) says evasive or incomplete.

• The Expense Request Under CR 37(a)(4), and Your Own Exposure Under It

  On a granted motion 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, 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. On a denied motion the same sentence runs against the moving party or the attorney advising it, and on a split result the court may apportion. CR 37(a)(2) adds that a motion denied in whole or in part may draw a protective order of the kind available under rule 26(c). Attorney review of the request is available as an option.