I have received several requests or just questions regarding a process called discovery. Discovery is a process that once the case is initiated, in some instances, there is some pre-suit discovery that’s allowed. Discovery is the process that when you file a lawsuit, you’re allowed to ask the other side for information.
It could be in the form of documents and recordings. It could also be written information, written questions that you provide to them, and they are required to respond within the timeframe provided by the local rules in whichever court jurisdiction that you’re a part of.
Under discovery process, you request certain documents, and if the other party does not respond within the time frame provided. You can file a motion to compel. In Florida, a motion to compel, you can file that.
One of the first things you have to do, and I’ve seen it so many times with other attorneys failing to do so, is you have to reach out to opposing counsel or to the other party and let them know they are late that they’re late on their responses or you haven’t found a response, or you filed a response. Still, you failed to include XYZ, can we get these documents by Friday, by today, or whatnot. If the other person is non-responsive or if the other person says I’m not going to give them to you then you can go ahead and file a motion to compel.
You must remember that you have to reach out and confer in legal terms in the way that it stated in, at least for the Florida rule. They will require you to confer with the other side before filing a motion to compel, and failure to do so would render your motion invalid, and the other side could actually ask for attorney’s fees for having to respond to a motion that was improperly filed.
Keep in mind that if you are seeking to compile certain discovery documents that were not provided to you and also with Florida, you have to actually include in your motion to compel a certification, it could be in the form of a sentence. Very simple which states pursuant to XYZ rule, “I have attempted to confer with opposing counsel or opposing party to obtain these documents without court intervention to no avail,” something like that saying that you tried to confer. It didn’t happen, and I’m still waiting for a discovery that has not been provided to me. It would make the motion to compel most likely valid, of course.
Make sure that what you’re asking for was either not objected to or was clearly just not provided to you because that’s when you file a motion to compel. Moreso, you could also file a motion to compel over an objection, but you have to address that with the court.
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