5.8 - Motions to Compel Responses to Discovery

(a) Generally

If a party or witness fails to adequately respond to a proper request for discovery, the party seeking discovery may file a motion with the ALJ for an order compelling a response in accordance with the request. An evasive or incomplete response to discovery may be treated as a failure to respond.

(b) Good Faith Efforts to Confer

Before a party files a motion to compel a response to discovery, the party must make a good faith effort to confer with the person or party allegedly failing to properly respond to a request for discovery in an effort to secure information or material without action by the ALJ.

(c) Contents of the Motion

A motion to compel a response to discovery must include:

• the nature of the questions or request at issue;
• the response or objections of the party upon whom the request was served;
• arguments in support of the motion; and
• a certification that the moving party has conferred (or attempted to confer) in good faith with the person or party failing to make a proper response to discovery.

(d) Response

The answering or objecting party may file a response to the motion to compel. The response must contain adequate justification for that party’s objections, or argument showing why the party’s answers to the discovery requests at issue were sufficient.

(e) Administrative Law Judge Action on the Motion to Compel

If the ALJ determines that the answers of a party or witness do not comply with the OCAHO rules regarding discovery, the ALJ may order the party or witness the make a proper answer to discovery.

(f) Failure to Comply with an Order by the Administrative Law Judge

If a party fails to comply with an order from the ALJ related to a request for discovery, the ALJ may:

• infer and conclude that the admission, testimony, documents, or other evidence at issue would have been adverse to the non-complying party;
• rule that for the purposes of the proceeding the matters involved will be taken as established adversely to the non-complying party;
• rule that the non-complying party may not introduce certain evidence or otherwise rely upon certain testimony, documents, or other evidence presented by a non-complying party or witness;
• rule that the non-complying party may not object to introduction and use of secondary evidence to show what the withheld evidence or testimony would have shown;
• rule that a pleading, motion, or other submission related to the insufficient discovery response be stricken;
• render a decision against the non-complying party; and/or
• make and enter any necessary protective orders.