The D.C. motion to compel: meet in person, then say when and where you met

Most jurisdictions ask you to confer in good faith and to certify that you did. The District of Columbia asks for something more specific and much easier to get wrong: an in-person meeting, a certification reciting when and where it happened, that certification placed in a particular spot on the page, and a motion that reproduces the disputed discovery verbatim.

Four requirements, none of them about the merits, all of them capable of sinking the motion.

The meeting

Rule 37(a)(1)(A) is unambiguous about the form the conferral takes:

Before any motion to compel discovery is filed, the affected parties or counsel must meet in person for a reasonable period of time in an effort to resolve the disputed matter. The movant must accompany any motion to compel discovery with a certification that despite a good faith effort to secure it, the discovery material sought has not been provided.

"Meet in person," not confer; "for a reasonable period of time," not exchange correspondence. Where federal Rule 37 and most state analogues accept a good-faith attempt in any medium, the District's default position is a meeting.

What the certification must say, and where it must sit

Rule 37(a)(1)(B) is the provision that catches practitioners who did everything right:

This certification must set out specific facts describing the good faith effort, including a statement of the date, time, and place of the meeting required by Rule 37(a)(1)(A), and must be placed immediately below the signature of the attorney or party signing the motion.

Specific facts, not a recital that the parties conferred. Date, time and place of the meeting. And a placement requirement — immediately below the signature — which no amount of substantive compliance elsewhere in the motion satisfies. Draft the certification as the last block on the page, after the signature line, and put the three facts in it.

The two ways out of the meeting

Rule 37(a)(1)(C) waives the meeting in two situations. The first is total silence:

The requirement of a meeting is waived if: (i) the motion concerns a failure to serve any response to a Rule 33 , 34, or 36 discovery request, a failure to appear for a deposition, or a Rule 35 examination, and the motion is accompanied by a copy of a letter, sent at least 10 days before the motion was filed, asking that the opposing counsel or party respond to the discovery request or that the deponent or examinee appear for a rescheduled deposition or examination

Note what (i) requires even so: a letter, sent at least 10 days before filing, attached to the motion. The waiver is not free.

The second is an opponent who will not meet:

or (ii) the movant certifies that, despite having sent to the opposing counsel or party, at least 10 days before the motion was filed, a letter (a copy of which must be attached to the motion) proposing a time and place for a meeting, and despite having made 2 telephone calls to the office of the opposing counsel or party (the date and time of each call must be specified in the motion), the movant has been unable to convene a meeting to resolve the disputed discovery matter.

A letter proposing a time and place, attached. Two telephone calls. The date and time of each specified in the motion. This is a checklist, and it is worth building the record to it from the first unanswered email rather than reconstructing it later.

The motion's format

Rule 37(a)(1)(D) governs the body:

Any motion to compel discovery must set out verbatim the question propounded and the answer given, or a description of the other discovery requested and the response to this request. The motion must also set out the reason or reasons the answer or response is inadequate.

A motion that attaches the interrogatories as an exhibit and argues from a summary does not comply. Set the question and answer out in the motion itself, and pair each with the reason it is inadequate. In practice this makes a D.C. motion to compel longer than its equivalent elsewhere and much harder to file casually — which is the point.

Which court

Rule 37(a)(2) splits the forum:

An application for an order to a party must be made to this court, or, on matters relating to a deposition, to the court in the jurisdiction where the deposition is being taken. A motion for an order to a nonparty must be made in the court where discovery is or will be taken.

For a party, the Superior Court. For a nonparty, the court where the discovery is happening — which, given the District's geography, is very often a Maryland or Virginia court rather than this one.

The clocks

Rule 33(a)(1) also caps written interrogatories: "a party may serve on any other party no more than 40 written interrogatories, including all discrete subparts." Forty is generous by state standards, and the subpart clause is where disputes actually arise.

The 75-day period is a District-specific feature worth diarising. A motion to compel filed against a government defendant on day 46 is premature.

Fees

Rule 37(a)(5)(A) makes the award mandatory when the motion succeeds, with three exceptions:

But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the discovery without court action; (ii) the opposing party's response or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.

Exception (i) is the one connected to everything above. A movant who skipped the meeting does not merely risk denial; the fee award is withdrawn by the rule itself.

Rule 37(a)(5)(B) mirrors it against a movant whose motion is denied, and (C) allows apportionment on a split result.

One limit sits at the end of the rule, in Rule 37(f):

Except to the extent permitted by statute, expenses and fees may not be awarded against the United States or the District of Columbia under this rule.

Against those defendants the fee shift simply does not operate.

After an order: the sanctions

Rule 37(b)(2)(A) applies where 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 (e), 35, or 37(a)"; the court "may issue further just orders." The list runs through deemed-established facts, preclusion, striking pleadings, staying the case, dismissal, default judgment and contempt.

Rule 37(b)(1) adds a District-specific wrinkle on depositions:

If a deposition-related motion is transferred to the court where the action is pending, and that court 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 either the court where the discovery is taken or the court where the action is pending.

Contempt of either court, once the motion has been transferred.

Lost electronic information

Rule 37(e) follows the current federal model rather than the older safe harbor, and the two tiers matter:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

The serious remedies — an adverse-inference instruction, a presumption, dismissal or default — sit behind a finding of intent to deprive. Prejudice alone buys a cure, not a punishment.

A short checklist

1. Propose a meeting in writing early, and keep the letter.
2. Meet in person unless a waiver route plainly applies.
3. Record the date, time and place while you are there.
4. Put the certification immediately below the signature — not in the body, not as an exhibit.
5. If nobody responded at all, send the 10-day letter and attach it.
6. If they will not meet, send the letter proposing a time and place, make two calls, and state the date and time of each in the motion.
7. Set out the question and the answer verbatim, with the reason each answer is inadequate.
8. Check who the defendant is before counting days — the District and the United States get 75.
9. File in the right court for nonparty discovery.
10. Do not expect fees against the District or the United States.

Where these rules live

• D.C. Super. Ct. Civ. R. 26 — Duty to Disclose; General Provisions Governing Discovery
• D.C. Super. Ct. Civ. R. 33 — Interrogatories to Parties
• D.C. Super. Ct. Civ. R. 34 — Producing Documents and Electronically Stored Information
• D.C. Super. Ct. Civ. R. 36 — Requests for Admission
• D.C. Super. Ct. Civ. R. 37 — Failure to Make Disclosures or to Cooperate in Discovery: Sanctions
• Responding to a D.C. complaint
• D.C. summary judgment

This page explains what the rules say. It isn't legal advice, and an individual judge's scheduling order may add requirements this page does not cover.