Certification: Motion to Compel Discovery
(NJ)

Summary

This template is a certification for a motion to compel discovery under N.J. Ct. R. 4:23-1(a) or N.J. Ct. R. 4:23-5(c). This template includes practical guidance, drafting notes, and optional and alternate clauses. N.J. Ct. R. 4:23-1(a) is used to compel responses to interrogatories or deposition questions, or to compel a company to designate an individual for deposition. N.J. Ct. R. 4:23-5(c) is broader, used to compel responses to requests for production of documents and things or attendance at expert examinations. They must be filed and returnable within the discovery period. Both are gentler means of seeking outstanding discovery than moving for dismissal of a pleading. They can be combined with a motion to extend discovery, which should be contemplated if the time remaining in the discovery period is soon to expire (see Extending Discovery Deadlines (NJ)). N.J. Ct. R. 4:23-1(a) specifically applies to the following discovery: • Failure to respond to a question served under N.J. Ct. R. 4:14 (depositions upon oral examination) or N.J. Ct. R. 4:15 (depositions upon written questions) • Evasive or incomplete answers to a question served under N.J. Ct. R. 4:14 or N.J. Ct. R. 4:15 • Failure to make a designation for company entity under N.J. Ct. R. 4:14-2 or 4:15-1 If a motion under this section is granted, the court is required under N.J. Ct. R. 4:23-1(c) to hold a hearing and award to the movant reasonable expenses and attorneys' fees for having to make the motion, unless the court determines that opposition to the motion was substantially justified or that an award of fees would be unjust. If the motion is denied, similar costs may be assessed against the movant with the same discretion. N.J. Ct. R. 4:23-5(c) applies to the following discovery: • Failure to respond to discovery sought under N.J. Ct. R. 4:17 (interrogatories) • Failure to respond to discovery sought under N.J. Ct. R. 4:18 (production of documents, electronic information, and other things) • Failure to attend a physical or mental examination under N.J. Ct. R. 4:19 In addition to this certification, your motion must include a notice of motion and proposed form of order. For these templates, see Notice of Motion (NJ) and Form: Proposed Order (NJ). Since a motion to compel discovery relates to pretrial discovery, it must also include any prior orders regarding discovery issues and any scheduled dates for pretrial conference, arbitration, or trial. N.J. Ct. R. 1:6-2(c). If you represent the defendant and the plaintiff has persistently failed to respond to your discovery demands, consider moving to dismiss under N.J. Ct. R. 4:23-5(a)(1). If you represent the plaintiff and the defendant has failed to respond to your discovery demands, consider filing a motion to strike under the same rule. If the complaint is dismissed without prejudice, all outstanding discovery will have to be provided before it can be restored. If the answer is stricken, the defendant will have to provide the outstanding discovery before moving to reinstate it. Obviously, this is the more antagonistic approach, but can be necessary with an unresponsive adversary so that your client is not prevented from having sufficient time to complete discovery. For more on compelling discovery, see Motion to Compel Discovery: Making the Motion (NJ). For more on discovery extensions in New Jersey, see Extending Discovery Deadlines (NJ). For more on motion practice, see Motion Practice: Making and Opposing a Motion (NJ).