Motions to Compel and Protective Orders in Employment Litigation

posted by Neil Klingshirn  |  Jan 15, 2010 3:55 PM [EST]  |  applies to Ohio

The Rules of Civil Procedure ("Civil Rules") provide the parties with tools to get the facts that are in the possession of the others.  If the others refuse to disclose the facts, provide documents or testify at depositions, the requesting party can seek a Motion to Compel (Civil Rule 37). If the court grants the motion to compel but the responding party disobeys it, the court can sanction the disobedient party.

A Protective Order is the flip side of a Motion to Compel.  If the party seeking discovery goes too far, the responding party can seek a Protective Order .  A Protective Order can prohibit or limit discovery, set conditions for discovery, or allow discovery only in a particular way
or for certain things. A court can also adopt a procedure for the disclosure of trade secret or other confidential information and can require the parties to file documents and testimony under seal.

Motions to Compel and Sanctions

If the other side refuses to answer interrogatories, produce documents or appear for depositions, the requesting party can should make a good faith effort to address the responding party's objections. Failing that, the requesting party can file a Motion to Compel. If court grants a motion to compel and the other party still refuses to produce the discovery, the court can sanction the disobedient party by:
  • ordering designated facts be taken as true;
  • prohibiting the disobedient party from introducing evidence or supporting or opposing claims or defenses on designated matters;
  • striking pleadings;
  • staying further proceedings until the order is obeyed;
  • dismissing the action;
  • rendering judgment against the disobedient party; or
  • treating as contempt of court the failure to obey the order, except for an order to submit to a physical or mental examination.

Protective Orders

Although the Discovery Tools allow extensive evidence gathering, they have limits. Specifically, parties cannot:
  • obtain evidence that is not relevant or reasonably calculated to lead to the discovery of admissible evidence or
  • conduct discovery to annoy, embarrass, oppress or place an undue burden or expense on another party or witness.
  • obtain privileged information.
If discovery exceeds these limits, the court can, at the request of a party, issue a protective order. The Court can also issue a protective order to assure the confidentiality of information obtained, such as trade secrets and confidential customer lists.

Before asking the court for a protective order, the parties must talk to each other to try to resolve the discovery problem.  In non-competition cases, both parties may share an interest in protecting the confidentiality of information. Hence, they may jointly ask the court to sign an agreed, or “stipulated,” protective order that the parties prepared.  If discussion among the parties does not solve the discovery problem or lead to a stipulated protective order, the party who wants protection from discovery must file a motion for a protective order.

When the court rules on the motion for a protective order, it can:
  • Deny it and allow the discovery;
  • Grant the protective order and prohibit discovery of certain topics, documents or witnesses;
  • Set conditions for permitting the discovery, such as specifying a specific time or place
  • for discovery or allowing discovery only in a particular way
  • limiting discovery to certain things
  • adopting a procedure for the disclosure of a trade secret or other confidential information
  • requiring the parties to file certain documents under seal.
A party should ask for a Protective Order if intends not to respond to a discovery request.  The party should usually not wait until the opposing party files a Motion to Compel. Otherwise, the responding party risks an award of attorneys' fees.

In any hard fought litigation, including employment litigation, the parties will resist disclosing harmful information. An adequate Discovery Plan therefore anticipates and reserves time to pursue Motions to Compel and Protective Orders during the discovery stage of the litigation.

External Links

Links to external sites with additional information about this topic.

posted by Neil Klingshirn  |  Jan 15, 2010 3:55 PM [EST]  |  applies to Ohio

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Neil Klingshirn
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