Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyMedium
A lawyer is representing a client in a civil case and has a strong belief that the opposing party is deliberately concealing discoverable information. After repeated good-faith attempts to obtain the information through standard discovery requests and informal negotiations, the opposing counsel continues to deny its existence. What is the lawyer's most appropriate next step?
- AAbandon the pursuit of the information, as further efforts would be unduly burdensome.
- BInform the court ex parte about the suspected concealment.
- CFile a motion to compel discovery, detailing the basis for belief that the information exists and is being withheld.
- DFile a motion for sanctions against the opposing party and counsel for discovery abuse.
Show answer & explanationAnswer & explanation
Correct answer: C. File a motion to compel discovery, detailing the basis for belief that the information exists and is being withheld.
When a lawyer has a good-faith belief that discoverable information is being withheld despite reasonable efforts, the appropriate next step is to file a motion to compel discovery. This seeks judicial intervention to enforce the discovery obligations, rather than immediately seeking sanctions or abandoning the pursuit.
Why the other options are wrong
- A. Abandoning the pursuit would be a failure in diligent representation if the information is believed to be critical.
- B. Ex parte communication with the court is generally improper and violates fairness to the opposing party.
- D. Sanctions are generally sought after a motion to compel has been granted and the party still fails to comply, or for particularly egregious conduct; it's usually not the immediate next step.
Discovery Enforcement
Lawyers must diligently seek discoverable information and, when faced with non-compliance, may seek judicial intervention to compel discovery.
- Duty to conduct discovery diligently.
- Opposing counsel must respond to discovery in good faith.
- Motions to compel are used to enforce discovery obligations.
Memory trick: Request, Negotiate, then Compel to get your data.