West Virginia Motion for an Order Compelling Disclosure or Discovery

Introduction

Key Things to Know

1. 1

   A West Virginia motion for an order compelling disclosure or discovery comes in two named versions and the forum depends on who you are moving against. Rule 37(a)(3)(A), To compel disclosure, is for a party who fails to make a disclosure required by Rule 26(a). Rule 37(a)(3)(B), To compel a discovery response, reaches a deponent who fails to answer a question asked under Rule 30 or 31, an entity that fails to make a designation under Rule 30(b)(6) or 31(a)(4), a party who fails to answer a Rule 33 interrogatory, and a party who fails to respond that inspection will be permitted or fails to permit it or fails to produce documents or tangible things under Rule 34.

2. 2

   Rule 53 is the provision most likely to surprise you. Discovery commissioners may be appointed and, in the rule's own words, should only be used in complex cases, and a party has 14 days from entry of an appointment order to object to the appointment, compensation or powers. A commissioner may preside at discovery resolution conferences and over discovery motions. After a motion is submitted, the commissioner shall prepare a written report containing recommendations for a resolution of each unresolved dispute, may direct counsel to prepare it, and shall file it and serve a copy on each party. The rule is explicit that the parties and the court are not bound by the report and that the court retains responsibility for the final determination.

3. 3

   The clocks after a commissioner's report are short and one of them waives. Rule 53(e)(2) gives any aggrieved party seven days from service to file and serve objections, five days for any other party to respond including its own objections, and five days for a reply. Objections not timely raised are waived. And discovery as to the matters in dispute may not proceed until the court's adoption of the order or resolution of objections, so the report stops the clock on the material you were trying to get. Rule 53(f) then has the court adopt, reverse or modify the report with or without a hearing, set the matter for hearing, or remand it with instructions.

4. 4

   Since the rewrite effective 1 January 2025, West Virginia switches discovery off at the start of a case. Rule 26(d)(1) provides that a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by the rules, by stipulation, or by court order. Rule 26(f)(1) requires the parties to confer as soon as practicable, and in any event at least 30 days after filing of a responsive pleading or motion under Rule 12, with a written report outlining the plan due to the court within 14 days after the conference.

5. 5

   Check the exemption list before you assume the moratorium applies, because one entry is a dollar figure. Rule 26(a)(1)(B) exempts eminent domain actions under Chapter 54 of the West Virginia Code, actions where the circuit court is acting as an appellate review of decisions from a Board of Equalization and Review, an action to enforce or quash an administrative summons or subpoena, a proceeding ancillary to a proceeding in another court, any matter where the agreed amount in controversy is less than $25,000, any action to enforce an arbitration award, and any action for review of an administrative record. In an exempt case there are no initial disclosures to compel and no conference to wait for.

6. 6

   Where disclosures are required they are compellable even though nobody served a request. Rule 26(a)(1)(A) requires a party, without awaiting a discovery request, to provide the individuals likely to have discoverable information it may use to support its claims or defenses along with the subjects of that information, a copy or a description by category and location of the documents and electronically stored information it may so use, a computation of each category of damages claimed with the material each computation rests on, and any insurance agreement under which an insurer may be liable to satisfy part or all of a possible judgment. Rule 37(a)(3)(A) is the motion when those do not arrive.

7. 7

   Two pieces of paper are capped rather than prescribed. Trial Court Rule 22.01, in Chapter 2 Civil Matters, requires all motions and responses to be concise, to state the relief requested precisely, and to be filed within the Rule 6(d) time frames, and permits a supporting memorandum of not more than twenty pages, double-spaced, which the court may allow to exceed twenty pages for good cause. The same rule requires counsel, in addition to filing and serving, to deliver copies of each motion, response, memorandum and supporting material to the assigned judge. T.C.R. 22.04 then requires all motions to be decided expeditiously to facilitate compliance with the scheduling order's deadlines.

West Virginia Requirements for Motion to Compel

• Which Circuit Court the Motion Belongs In, Under Rule 37(a)(2)

  A motion for an order to a party goes to the court where the action is pending. A motion for an order to a nonparty shall be made in the circuit court where the discovery is or will be taken, and that branch is not a choice. Note the wording: discovery rather than deposition, and is or will be taken rather than is being taken, so it reaches discovery not yet under way. The same split carries into the next stage, since Rule 37(b)(1) is captioned Sanctions in the circuit where the deposition is taken and Rule 37(b)(2) Sanctions in the circuit where the action is pending.

• Whether the Rule 26(f) Conference Had Happened, or the Case Is Exempt

  Rule 26(d)(1) provides that a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by the rules, by stipulation, or by court order. Record the conference date, or the exemption, or the stipulation or order. Rule 26(a)(1)(B)'s exemptions include any matter where the agreed amount in controversy is less than $25,000, any action to enforce an arbitration award, any action for review of an administrative record, eminent domain under Chapter 54, and a proceeding ancillary to a proceeding in another court.

• Which Subparagraph of Rule 37(a)(3) You Are Under

  37(a)(3)(A), To compel disclosure, is for a party who fails to make a disclosure required by Rule 26(a), and you need not have served anything. 37(a)(3)(B), To compel a discovery response, reaches a deponent who fails to answer a question asked under Rule 30 or 31, an entity that fails to make a designation under Rule 30(b)(6) or 31(a)(4), a party who fails to answer a Rule 33 interrogatory, and a party who fails to respond that inspection will be permitted or fails to permit it or fails to produce documents or tangible things under Rule 34. Rule 36 is not among them, so a bad answer to a request for admission goes to Rule 36(a)(6) instead.

• Proof That the Thirty Days Had Run, With the Early-Request Rule Applied

  Rule 33(b)(2) and Rule 36(a)(3) each give 30 days after being served, extendable by stipulation under Rule 29 or by court order, and West Virginia gives a defendant no longer period measured from service of process. One variation runs the other way and is easy to miscount: under Rule 26(d)(2) a Rule 34 request delivered early is considered to have been served at the first Rule 26(f) conference, so the 30 days starts at the conference rather than when the request landed. State the computation.

• Your Interrogatory Count, and Whether the Objections Were Specific and Timely

  Rule 33(a)(1) allows no more than 25 written interrogatories including all discrete subparts unless otherwise stipulated or ordered, with leave available consistent with Rule 26(b). Rule 33(b)(4) provides that the grounds for objecting shall be stated with specificity and that any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. Rule 33(b)(3) requires each interrogatory, to the extent it is not objected to, to be answered separately and fully in writing under oath, so a partial objection does not excuse the rest.

• The Twenty-Page Memorandum, and the Copies Delivered to the Assigned Judge

  Trial Court Rule 22.01, in Chapter 2 Civil Matters, requires all motions and responses to be concise, to state the relief requested precisely, and to be filed in accordance with the Rule 6(d) time frames, and permits a supporting memorandum of not more than twenty pages in length, double-spaced, together with copies of depositions or pertinent portions, admissions, documents, affidavits and other materials relied on. The court may allow more than twenty pages for good cause. The separate step people miss: in addition to filing and serving, counsel shall deliver to the assigned judge copies of each motion, response, supporting memorandum and supporting document or material.

• Whether a Rule 53 Discovery Commissioner Is in the Case, and the Seven-Day Clock

  Rule 53(b) allows a discovery commissioner to be appointed, says they should only be used in complex cases, and gives 14 days from entry of an appointment order to object to the appointment, compensation or powers. Rule 53(d)(2)(B) lets a commissioner preside over discovery motions, and Rule 53(c) allows the compensation to be assessed to the parties. After a motion is submitted, Rule 53(e)(1) requires a written report recommending a resolution of each unresolved dispute, which binds neither the parties nor the court. Rule 53(e)(2) then gives 7 days from service to object, 5 days to respond and 5 days to reply, provides that objections not timely raised are waived, and provides that discovery as to the matters in dispute may not proceed until the court's adoption of the order or resolution of objections.

• The Expenses Request Under Rule 37(a)(5), and the Prohibition Form It Takes

  37(a)(5)(A) provides that on a granted motion, or where the disclosure or requested discovery is provided after the motion was filed, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney fees. The exceptions are then written as a prohibition on the court, and two of them read in terms: the court shall not order the payment if the opposing party's answer, nondisclosure, response, or objection was substantially justified, or if other circumstances make an award of expenses unjust. 37(a)(5)(B) runs the same shall against a losing movant on the substantially-justified and unjust-circumstances findings, and 37(a)(5)(C) lets the court apportion the expenses on a motion granted in part and denied in part.