The Maine motion to compel: you do not file one — you write the clerk a letter

Almost everywhere else, a discovery dispute produces a motion, a memorandum, an opposition and a reply. Maine forbids all of that until a judge says otherwise. Rule 37(a)(1) sends you somewhere else in its first line:

A motion for an order to a party or a deponent shall be made under Rule 26 (g).

And Rule 26(g) opens with a prohibition.

No written motion without permission

No written motions under Rule 26 through 37 shall be filed without the prior approval of a justice or judge of the court in which the action is pending.

Read that again, because it covers the whole discovery chapter — motions to compel, motions for protective orders, motions for sanctions. A written motion filed without leave is not a weak motion. It is a filing the rule does not permit.

What you do instead is a three-step sequence set out in the same paragraph.

Step one: confer

The moving party shall first confer with the opposing party in a good faith effort to resolve by agreement the issues in dispute.

No certificate accompanies this, because there is no motion to attach one to. The representation comes later, and it comes automatically.

Step two: write to the clerk

If the dispute is not resolved by agreement, the moving party shall request a hearing from the clerk by letter. The letter shall succinctly and without argument or citation describe the nature of the dispute and the relief requested.

Two instructions govern the letter, and both cut against habit.

Succinctly, without argument or citation. This is not a brief with the caption removed. Describe the dispute and say what you want. Authority belongs at the hearing, if anywhere.

Attach only what is in issue.

In cases involving objections to interrogatories or document requests, the moving party shall attach to the letter copies of only the specific objections in question and the specific interrogatories or requests to which objection has been made.

Only the specific ones. Sending the full set of interrogatories with the disputed three buried inside does not comply.

If the matter will not wait, the rule allows the request to be made "[i]n exigent circumstances… to the clerk by telephone or in person."

The certification you make without writing one

The request for a hearing constitutes a representation to the court, subject to Rule 11 , that the conference with the opposing party has taken place and that the moving party has made a good faith effort to resolve the dispute.

Where other states require a certificate inside the motion, Maine attaches the representation to the act of asking for a hearing — and backs it with Rule 11. Requesting a hearing without having conferred is a Rule 11 problem, not merely a defective motion.

The clerk then tells you when and how the hearing will happen, and the burden of notice is yours: the moving party "shall provide prompt notice of the hearing to all the other parties." If it is by telephone or video, the moving party "shall connect all other parties who elect to participate and shall initiate the telephone or video conference call to the court."

Step three: the hearing, which may not happen

Rule 26(g)(2) creates a shortcut for the simplest case:

The court may issue an order without a hearing if the request is based on a failure to either answer or object to outstanding discovery requests.

Complete silence is dealt with on the papers. Everything else gets argued:

In all other cases the parties shall be prepared to offer oral argument at a hearing or a telephone or video conference on the discovery issues in question if scheduled by the court. No written argument shall be submitted and no motion papers shall be filed with the clerk without prior leave of the court.

The second sentence repeats the prohibition, in case the first one tempted you. Be ready to argue; do not send a brief.

What comes out of it

Rule 26(g)(3) makes the hearing consequential rather than preliminary:

The justice or judge may make such orders at the hearing as are necessary to resolve the dispute. Such orders shall be reduced to writing and shall constitute orders for purposes of Rule 37 .

That last clause is the hinge of the whole scheme. An order announced at a Rule 26(g) hearing is a Rule 37 order, so disobeying it exposes the party to the full sanctions menu. The informal route produces a formal consequence.

And if the dispute is too tangled to resolve on the spot, the judge "may order a written motion and supporting memoranda to be filed under Rules 7 and 37 and may make such orders as are necessary to narrow or dispose of the dispute." The written motion arrives at the end of the process, by leave — not at the beginning.

The clocks that get you here

The defendant's longer period exists so a plaintiff cannot start the discovery clock before the answer is due. Note the asymmetry in Rule 36: silence there is not a failure you have to move about. It is an admission.

Expenses: mandatory in both directions

Rule 37(a)(4) shifts costs whichever way the dispute comes out.

If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

And in reverse:

If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

"Shall" both ways. A split result is apportioned: where the motion "is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Narrowing what you ask for before the hearing is worth real money.

Once an order is disobeyed

Rule 37(b)(2) supplies the sanctions, and they run from the mild to the terminal: facts taken as established, preclusion of claims or defenses, striking pleadings, staying proceedings, dismissal, default judgment, and contempt for disobeying anything but a physical or mental examination order. On top of any of them the court "shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."

Because Rule 26(g)(3) converts a hearing order into a Rule 37 order, this menu is available after a hearing at which no paper was ever filed.

When nothing at all was served

Rule 37(d) covers the party who does not appear and does not answer — no appearance at a properly noticed deposition, no answers or objections to interrogatories, no written response to a request for production. The court may impose the (A), (B) and (C) sanctions directly, and expenses again follow unless the failure was substantially justified.

One sentence at the end of (d) matters more than its placement suggests:

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26 (c).

Thinking a request improper is not a reason to ignore it. Objecting is a response; silence is not — and by the time the silence is challenged, the application for protection has to already have been made.

Failure to admit, and lost data

Two smaller provisions round out the rule. Under Rule 37(c), a party who proves a matter the other side refused to admit may recover the expenses of making that proof, including reasonable attorney fees, and the court "shall make the order" unless one of four exceptions applies. Under Rule 37(e), absent exceptional circumstances the court "shall 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" — Maine's version is the older safe harbor, not the later federal provision about intent to deprive.

A short checklist

1. Do not draft a motion. Rule 26(g)(1) bars filing one without prior approval.
2. Confer, and mean it — the hearing request is a Rule 11 representation that you did.
3. Write the clerk a short letter: the nature of the dispute and the relief you want, no argument, no citations.
4. Attach only the specific requests and objections in issue.
5. Ask by telephone or in person if the circumstances are exigent.
6. Give every other party prompt notice, and place the call yourself if the hearing is remote.
7. Expect no hearing at all where the other side simply never answered or objected.
8. Come ready to argue, not to file.
9. Get the order reduced to writing — that is what makes it a Rule 37 order.
10. Narrow the dispute first. Fees are mandatory both ways, and a split is apportioned.

Where these rules live

• Me. R. Civ. P. 11 — Signing of Pleadings
• Me. R. Civ. P. 26 — General Provisions Governing Discovery
• Me. R. Civ. P. 33 — Interrogatories to Parties
• Me. R. Civ. P. 34 — Production of Documents and Things
• Me. R. Civ. P. 36 — Requests for Admission
• Me. R. Civ. P. 37 — Failure to Make Discovery: Sanctions
• Responding to a Maine complaint
• Maine summary judgment

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