The West Virginia motion to compel: an early document request is not served when you deliver it

The most common way to file a premature motion to compel in West Virginia has nothing to do with Rule 37. It comes from counting thirty days from the day you handed over a document request that the rules had not yet treated as served.

Delivered, then served

Rule 26(d)(1) closes discovery until the parties have conferred: "A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)," subject to exemptions, stipulation and court order.

Rule 26(d)(2) then opens a door, and adds a fiction:

(2) Early Rule 34 requests. (A) Time to deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served. (B) When considered served. The request is considered to have been served at the first Rule 26(f) conference.

Delivery and service are two different events, and only the second one starts a clock. Rule 34(b)(2)(A) confirms it:

The party to whom the request is directed shall respond in writing within 30 days after being served or – if the request was delivered under Rule 26 (d)(2) – within 30 days after the parties' first Rule 26 (f) conference.

So an early request delivered on day 22 and answered ninety days later may be perfectly timely, if the Rule 26(f) conference happened sixty days in. Before drafting a motion, fix the date of that conference.

The clocks

Rule 33(a)(1) caps the count at "no more than 25 written interrogatories, including all discrete subparts." Twenty-five is tight, and West Virginia gives a newly served defendant no extra time to answer them — so both the number and the calendar are stricter here than in most neighboring states.

The certification, and which court

Rule 37(a)(1) requires the certificate in the motion:

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion shall 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.

Rule 26(c) requires the same of a protective-order motion, so neither side goes straight to court.

Rule 37(a)(2) allots the forum: a motion against a party goes to the court where the action is pending, and "[a] motion for an order to a nonparty shall be made in the circuit court where the discovery is or will be, taken."

Fees, and a gap in the published text

Rule 37(a)(5)(A) makes the award mandatory when the motion is granted or when the material arrives after filing — the provision that stops an opponent buying off the motion by producing on the courthouse steps. It then lists the exceptions:

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

A note on limb (i). As published, it reads "the movant filed the motion good faith to obtain the disclosure or discovery without court action" — words appear to be missing, and the federal provision this tracks reads "filed the motion before attempting in good faith to obtain the disclosure or discovery without court action." Read with those words, the limb withholds fees from a movant who did not try first, which is how every neighboring state's version works and what the certification requirement in Rule 37(a)(1) exists to police. It is noted here only so that a reader who spots the gap knows it is in the published text rather than a transcription slip on this page. The safe course is unchanged either way: confer first, and say so in the motion.

Rule 37(a)(5)(B) runs against a losing movant and pairs the fee award with a second risk:

If the motion is denied, the court may issue any protective order authorized under Rule 26 (c) and shall, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney fees.

The opposing party need not have asked for the protective order. A denied motion to compel can produce, in the same order, a restriction on the discovery you were pursuing plus a fee award against you and your attorney.

Once an order is disobeyed

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 (f), 35, or 37(a)"; the court where the action is pending "may issue further just orders," listed (i) through (vi) — deeming facts established, preclusion, striking pleadings, staying proceedings, dismissal, and default judgment.

Note again that an order under Rule 26(f) is inside the list. Ignoring the discovery plan is disobedience of an order, not a lesser category of default.

West Virginia also splits the deposition sanctions by circuit: (b)(1) covers sanctions "in the circuit where the deposition is taken" and (b)(2) those "in the circuit where the action is pending."

Failure to disclose, and telling the jury

Rule 37(c)(1) begins with preclusion:

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.

And the additional remedies reach the trial itself:

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 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).

Limb (B) is frequently the most useful thing to ask for where a party held material back and then relied on it: it arrives during the trial, and it does not require the findings that the (C) sanctions attract.

The failure-to-admit provision follows, and the court "shall so order" the expenses of proof unless the request was held objectionable under Rule 36(a), the admission was of no substantial importance, the party had a reasonable ground to believe it might prevail, or there was other good reason for the failure.

When nothing was served at all

Rule 37(d) covers non-appearance at a properly noticed deposition and the complete failure to serve answers, objections or a written response. No prior order is required, and its second paragraph is headed "Unacceptable excuse for failing to act" — a party cannot justify silence on the ground that the discovery was objectionable unless a motion for a protective order is already pending.

Lost electronic information — two tiers

Rule 37(e) is the current federal provision, adopted in full:

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 the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party;

The word to build a motion around is "only." Prejudice alone buys a cure and nothing more; the presumption, the jury instruction and the case-ending remedies all require a finding of intent to deprive. A spoliation motion that proves loss and prejudice but not intent should ask for tier (1) relief and say so, rather than overreaching and getting nothing.

Rule 37(f) prices a refusal to plan: a party or attorney who "fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26 (f)" may be ordered to pay the resulting expenses and fees.

A short checklist

1. Fix the date of the first Rule 26(f) conference before counting anything.
2. Check how the Rule 34 request traveled — delivered early under Rule 26(d)(2), or served conventionally.
3. Count thirty days, for everyone. West Virginia gives a new defendant no extra time.
4. Check the twenty-five-interrogatory cap, subparts included.
5. Confer, then certify it in the motion. Rule 37(a)(1) requires it whatever limb (i) of the fee rule turns out to say.
6. File nonparty motions in the circuit where the discovery is or will be taken.
7. Weigh the downside — a denied motion draws mandatory fees against you and your attorney, and may draw a protective order too.
8. Ask for the jury instruction under (c)(1)(B) where withheld material is later relied on.
9. Use Rule 37(d) where nothing at all was served; no prior order is needed.
10. Plead intent to deprive if you want more than a curative ESI measure, and prove it.

Where these rules live

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

This page explains what the rules say. It isn't legal advice, and an individual court's scheduling order may set discovery deadlines this page does not cover.