Is Your Motion to Compel Timely?

A prior post noted that some judges feel a motion to compel filed during the discovery time period is usually timely. Williams v. Las Vegas Metro. Police Dep’t, 2:13-cv-01340, 2015 U.S. Dist. LEXIS 71783 (D. Nev. 2015) expounded on this concept.

“Neither the Federal Rules nor the Local Rules of this Court identify a deadline by which to file a motion to compel.” Despite this, it is “clear that a party may not unduly delay in filing its motion to compel.” Judges within the district had articulated the general theory that motions to compel are rarely untimely, however “[t]hese are only general guideposts, however; they are not bright-line rules.” “The timeliness of each motion must be determined based on the circumstances specific to that case. … Untimeliness is sufficient ground, standing alone, to deny a discovery motion….”

Williams sought to add additional clarity and observed serveral other local judges had used “the non-exhaustive list of factors identified in Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 398 (S.D. Tex. 2006) in analyzing the timeliness of a motion to compel.”

These factors include: (1) the length of time since expiration of the deadline; (2) the length of time the moving party has known about the discovery; (3) whether the discovery deadline has been previously extended; (4) the explanation for the tardiness or delay; (5) the age of the case; (6) any prejudice to the party from whom the discovery is sought; and (7) disruption of the court’s schedule. When the motion to compel also includes an implicit request to extend the discovery period, the movant must further show that the relevant standards for such an extension have been met.

Downs v. River City Group, LLC, 3:11-cv-00885, 2014 U.S. Dist. LEXIS 31909 (D. Nev. 2014) applied these factors and concluded the motion to compel was untimely. EEOC v. Pioneer Hotel, Inc., 2:11-cv-01588, 2014 U.S. Dist. LEXIS 143894 (D. Nev. 2014) also applied these factors, but concluded the motion to compel was untimely only as to one interrogatory. Bonavito v. Nev. Prop. 1 LLC, 2:13-cv-00417, 2014 U.S. Dist. LEXIS 150305 (D. Nev. 2014) applied the same factors and denied the entire motion as untimely. If you practice in Nevada’s federal courts, these factors seem like ones you should know and brief.