How Do I Compel Discovery When the Judge Has Recused Himself from the Case?
Full Question:
Answer:
Generally, it may be proper to file a motion to compel discovery when a party has delayed scheduling discovery and sanctions apply unless the failure was substantially justified or other circumstances make an award of expenses unjust. We are prohibited from giving legal advice, such as advising on what motion should be filed in a particular case, as this service provides information of a general legal nature. Regardless of what motion is filed, it will need to be reviewed by a judge or magistrate before an order can be issued, so it is a matter of personal judgment whether to postpone filing until reassignment to a new decision maker is made or not.
Please see the following OH Rule of Civil Procedure:
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must be made in
the court where the action is pending. A motion for an order to a
nonparty must be made in the court where the discovery is or will be
taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure
required by Rule 26(a), any other party may move to compel disclosure and
for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking discovery may move
for an order compelling an answer, designation, production, or
inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
(ii) a corporation or other entity fails to make a designation under
Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule
33; or
(iv) a party fails to respond that inspection will be permitted — or
fails to permit inspection — as requested under Rule 34.
(C) Related to a Deposition. When taking an oral deposition, the party
asking a question may complete or adjourn the examination before moving
for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes
of this subdivision (a), an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided
After Filing). If the motion is granted — or if the disclosure or
requested discovery is provided after the motion was filed — the court
must, 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's fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may
issue any protective order authorized under Rule 26(c) and must, after
giving an opportunity to be heard, require the movant, the attorney
filing the motion, or both to pay the party or deponent who opposed the
motion its reasonable expenses incurred in opposing the motion, including
attorney's fees. But the court must not order this payment if the motion
was substantially justified or other circumstances make an award of
expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the motion
is granted in part and denied in part, the court may issue any protective
order authorized under Rule 26(c) and may, after giving an opportunity to
be heard, apportion the reasonable expenses for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions in the District Where the Deposition Is Taken. If the
court where the discovery is taken orders a deponent to be sworn or to
answer a question and the deponent fails to obey, the failure may be
treated as contempt of court.
(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's
officer, director, or managing agent — or a witness designated under Rule
30(b)(6) or 31(a)(4) — fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or 37(a), the court
where the action is pending may issue further just orders. They may
include the following:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action, as
the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in
evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
(B) For Not Producing a Person for Examination. If a party fails to
comply with an order under Rule 35(a) requiring it to produce another
person for examination, the court may issue any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it
cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition to the orders
above, the court must order the disobedient party, the attorney advising
that party, or both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses unjust.
(c) Failure to Disclose, to Supplement an Earlier Response, or to
Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an opportunity to be
heard:
(A) may order payment of the reasonable expenses, including attorney's
fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).
(2) Failure to Admit. If a party fails to admit what is requested under
Rule 36 and if the requesting party later proves a document to be genuine
or the matter true, the requesting party may move that the party who
failed to admit pay the reasonable expenses, including attorney's fees,
incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that
it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to
Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is
pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing agent — or a
person designated under Rule 30(b)(6) or 31(a)(4) — fails, after being
served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under
Rule 33 or a request for inspection under Rule 34, fails to serve its
answers, objections, or written response.
(B) Certification. A motion for sanctions for failing to answer or
respond must include a certification that the movant has in good faith
conferred or attempted to confer with the party failing to act in an
effort to obtain the answer or response without court action.
(2) Unacceptable Excuse for Failing to Act. A failure described in Rule
37(d)(1)(A) is not excused on the ground that the discovery sought was
objectionable, unless the party failing to act has a pending motion for a
protective order under Rule 26(c).
(3) Types of Sanctions. Sanctions may include any of the orders listed
in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these
sanctions, the court must require the party failing to act, the attorney
advising that party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses
unjust.
(e) Failure to Provide Electronically Stored Information. Absent
exceptional circumstances, a court may not impose sanctions under these
rules on a party for failing to provide electronically stored information
lost as a result of the routine, good-faith operation of an electronic
information system.
(f) Failure to Participate in Framing a Discovery Plan. If a party or
its attorney fails to participate in good faith in developing and
submitting a proposed discovery plan as required by Rule 26(f), the court
may, after giving an opportunity to be heard, require that party or
attorney to pay to any other party the reasonable expenses, including
attorney's fees, caused by the failure.
