Discovery Disputes: Meet-and-Confer, Motions to Compel, and Sanctions

When one side in a civil case will not produce documents, answer questions, or appear for a deposition, the other side cannot simply ask the judge to fix it. Federal Rule of Civil Procedure 37 requires a motion to compel to include a certification that the movant conferred, or attempted in good faith to confer, with the other party first. Only after that step will a court reach the merits — and only after an order is disobeyed do the heavier sanctions become available. State courts impose similar conferral duties under their own rules, and many local rules add requirements the national rule does not contain.

Where discovery fights come from

Discovery is the phase where each side obtains information from the other: documents, written answers to interrogatories, admissions, depositions, and inspections. Its scope is set by Rule 26, which allows discovery of nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case.

Proportionality is where most disputes actually live. The rule lists factors — the importance of the issues, the amount in controversy, the parties' relative access to information, their resources, the importance of the discovery to resolving the issues, and whether the burden outweighs the likely benefit. Neither "it is relevant" nor "it is burdensome" wins an argument on its own.

• Objections that state no specific ground and produce nothing.
• Productions that arrive in an unusable format or without the metadata requested.
• Privilege withholdings unsupported by an adequate log.
• Search terms, custodians, and date ranges that were never actually agreed.
• Depositions canceled, cut short, or obstructed by speaking objections.

Watch out: Boilerplate objections are treated harshly. A response that recites general objections and then produces documents "subject to and without waiving" them tells the other side nothing about what was withheld, and courts increasingly treat that as no objection at all.

The conferral step, done properly

The certification requirement is not a formality to be satisfied with a single email. Judges read meet-and-confer records closely, and a motion that documents genuine effort is treated very differently from one that documents a demand.

1. Write a specific deficiency letter. Identify each request by number, state what was expected, and explain why the response is inadequate.
2. Offer a narrowing. Propose a shorter date range, fewer custodians, or a phased production. Proposals make the record look reasonable.
3. Confer live. Many local rules require a telephone or in-person conference; an email exchange alone may not satisfy them.
4. Confirm in writing. Summarize what was agreed, what remains disputed, and any deadline the parties set.
5. Certify accurately. The certificate should describe when the conferral happened, who participated, and what was resolved.

Some districts require a pre-motion letter to the judge or an informal discovery conference before any motion may be filed. Others give the magistrate judge full control over discovery. Local practice varies enough that the district's own rules must be read; the federal courts' site is where each district publishes them.

The motion to compel

A motion to compel asks the court to order a response, a production, or an answer. It should be organized request by request, not as a general complaint about the other side's conduct, and it should attach the requests, the responses, and the conferral correspondence.

The rule also has a fee-shifting default that surprises people. If the motion is granted — or if the material is produced after the motion is filed — the court must generally require the losing side to pay the movant's reasonable expenses, unless the position was substantially justified or an award would be unjust. The reverse applies if the motion is denied. The text is at Cornell's page for Rule 37.

Note: A party facing overbroad discovery can move first, for a protective order limiting the scope, timing, or confidentiality of what must be produced. Moving proactively is often better positioning than waiting to be the respondent on a motion to compel.

The sanctions ladder

Courts apply the ladder with an eye to proportionality of their own. Terminating sanctions generally require a record of repeated violations, warnings, and consideration of lesser measures first. That record is exactly what a well-documented conferral history creates.

Lost electronic information is handled differently

Electronically stored information has its own provision, and it does not work like the rest of the sanctions scheme. It applies when ESI that should have been preserved is lost because a party failed to take reasonable steps, and it cannot be restored or replaced through additional discovery.

If the loss prejudices another party, the court may order measures no greater than necessary to cure the prejudice. The severe remedies — an adverse inference instruction, dismissal, or default — require a finding that the party acted with intent to deprive the other side of the information. Negligence alone, even serious negligence, does not reach that tier.

The duty to preserve arises when litigation is reasonably anticipated, which is often before a complaint is filed. Organizations meet it with a litigation hold that suspends automatic deletion and tells custodians what to keep — the same records discipline discussed in our guide to recall reporting duties and records. Non-parties served with subpoenas face a parallel obligation, covered in our article on responding to a civil subpoena.

Common questions

How long should I wait before filing a motion to compel?

Long enough to build a genuine conferral record, and no longer. Many courts impose a deadline measured from the deficient response or from the close of discovery, and some local rules require the motion within a set number of days. Waiting until the eve of trial is a common reason motions are denied as untimely even when the underlying complaint is valid. Check the scheduling order first.

Can I refuse to produce documents that would embarrass my client?

Embarrassment is not a basis for withholding, though it can support a protective order limiting who sees the material and how it may be used. The available grounds are privilege, work product, lack of relevance, disproportionate burden, and specific protections such as trade secrets. A confidentiality order is the usual answer for sensitive but discoverable material.

What happens to discovery while a dispositive motion is pending?

In federal court, it normally continues. A party can ask for a stay of discovery pending a motion, but it is discretionary and often denied where the motion may only narrow the case rather than end it. Our explainer on motions to dismiss covers how those motions interact with the case schedule. Some states stay discovery automatically.

Do these rules apply the same way in state court?

The structure usually looks familiar, but the details do not transfer. States set their own limits on interrogatory counts and deposition hours, their own conferral formalities, and their own spoliation standards — several of which are judge-made rather than written into a rule. Assuming the federal sanctions framework applies in a state case is a frequent and consequential mistake.

Handling a dispute without making it worse

1. On receiving a deficient response

   Diary the response date and read the scheduling order for any motion deadline tied to it.

2. Within days

   Send a request-by-request deficiency letter with a proposed narrowing and a date for a live conference.

3. At the conference

   Resolve what can be resolved, and record precisely what remains disputed.

4. Before moving

   Check whether the court requires a pre-motion letter or informal conference; skipping it usually means the motion is returned.

5. In the motion

   Attach the requests, responses, and correspondence. Ask for specific relief on specific requests.

6. After an order

   Comply fully and on time. Violating an order is what moves a dispute from an expense award to the serious end of the ladder.

Practical step: Read the Federal Rules of Civil Procedure alongside the district's local rules and the judge's standing order before drafting, or the state equivalents located through USA.gov. If the dispute is really about the cost of continuing, the routes in our guide to mediation and settlement conferences may resolve more than the motion would.