Few litigators like discovery. It can be extensive, expensive, and irritating. It can also lead to a motion to compel and the unpleasantries that often surround those motions. In general, Fed. R. of Civ. P. Rule 37(a)(5) mandates the awarding of attorneys’ fees unless the losing party’s position was “substantially justified” or “other circumstances make an award of expenses unjust.” So, when a party is not getting what it feels it needs in discovery and the meet-and-confer process is fruitless, a Rule 37 motion to compel often follows.
There is a perception among practitioners in the Norfolk and Newport News Divisions that the Court disfavors motions to compel. Indeed, during a recent hearing on a motion to compel concerning the location of a deposition, Magistrate Judge Doug Miller acknowledged that common view:
When I do discovery motions, people say judges hate discovery
motions, and the truth is we don’t usually, but this is the kind of
motion that judges really don’t like to have to wade into because,
frankly, it’s usually the kind of thing that lawyers work out.
What does Rule 37 look like in practice in the Eastern District of Virginia’s Norfolk and Newport News division? To provide practitioners some concrete information to advise their clients on when to file a motion and what to expect, we undertook a detailed examination of the relevant dockets to answer three fundamental questions:
(1) How often are motions to compel being filed in these courts?
(2) If filed, how often do they mature to a decision by a judge?
(3) If a motion is granted or denied, how often and in what amount do the judges award attorneys’ fees?
We looked at the dockets and data for civil cases filed in 2019. We outline the data collection process below, but for those of you who are more interested in the answers, we start there:
- How often are motions to compel filed?
The filing of a motion to compel is neither rare nor common in the two divisions. Across the hundreds of civil cases filed in the two divisions in 2019, we identified 27 cases in which at least one motion to compel was filed against a party.
- What happened in those 27 cases?
In the 2019 cases, most motions were not decided by a judge. At the time of writing, there were still three cases (11%) in which the motion to compel remained pending. As to the remaining 24 cases, in 14 of the 24 cases (58%), the motion to compel was either voluntarily withdrawn or the case was settled before the motion was ready for decision.
To many practitioners, this will not be a surprise. A motion to compel is often the wake-up call a party needs to finally comply with its discovery obligations. And at other times, a motion to compel can indicate an inflection point where settlement discussions make sense. Regardless of the particular reasons, the filing of the motion did not typically lead to a decision.
A decision was rendered in only 10 of the 24 cases (42%). How did the moving party fare? Unsurprisingly, a lot of mixed results—“granted in part and denied in part.” This may be an indication that the meet-and-confer process often works to narrow the issues down to the closest calls. But if a motion was filed and got to a decision, there was a very good chance the moving party was going to get at least some of what it sought.
In only one case was there a full denial. Magistrate Judge Leonard had some harsh words for the parties and their attorneys:
After reviewing the briefing and the parties’ arguments, it appears to the Court that at best, both parties were unable to effectively communicate their expectations of one another with respect to the production of documents in accordance with Rule 33(d), and production of documents in general. At worst, it appears to the Court that both parties may be more interested in posturing and gamesmanship than resolving a genuine dispute.
Unsurprisingly, the motion was denied, but no fees were awarded.
- Is anyone getting fees in the cases where a decision is rendered?
Rarely. In many cases, it appears like the issue of fees is simply never addressed by the parties or the Court. In others, the Court merely decided that there was substantial justification for the dispute. In only two cases did the Court indicate it would award fees. In both cases, it appears the award was only after the non-movant failed to respond to the motion.  But the Court did not complete the process of awarding fees in either case—the fee issue in both cases was resolved by the parties before the award of fees was completed.
An outright favorable decision on a motion to compel is relatively rare in the Norfolk and Newport News division. Parties should be careful and selective in what they chose to file, and they should certainly not assume that fees will be award as a matter of course.
About Our Data Collection Process
Using Lexis-Nexis’s Courtlink, we conducted a docket search for “compel,” limited to the “Virginia Eastern (Civil),” and limited to cases filed between January 1, 2019, and December 21, 2019. That search provided 257 results. Those results were exported into a Microsoft Excel file. The cases were sorted by case number, and all case numbers beginning with a 1 (Alexandria) and 3 (Richmond) were excluded. Alexandria constituted 181 of the initial results, and Richmond constituted 31 of the initial results, which left 45 Norfolk and Newport News dockets containing the term compel.
From there, an individual review of the dockets in the Courtlink system and the associated filings was conducted. Cases involving a pro se party, a motion to compel arbitration, or a motion to compel on a subpoena were excluded. The dockets were searched for the relevant order, any notice of withdrawal, attorneys’ fee issues, or case dismissal.
Although we believe this process was adequate to identify all relevant cases, it is possible that one or more cases were omitted through manual error or through Courtlink’s collection and processing of docket information.
Originally published in and reprinted from “Fed Tide”—newsletter of the Hampton Roads Chapter of the Federal Bar Association.
 Mourey v. Norfolk Southern Railway Co., 2:19cv86, Dkt. No. 35 at 3:2-6 (E.D.Va.).
 We did, however, exclude from that count seven pro se cases. The decision made by a pro se party to file a motion or the decision to file a motion against a pro se party who often does not even understand what “discovery” means are so dissimilar to decisions in cases where both parties are represented we felt it appropriate to exclude them.
 Appotronics Corporation Limited v. Delta Electronics, Inc, 2:19cv466, Dkt. No. 63 at 2. (E.D.Va.).
 Bly v. James Barry-Robinson Institute, 2:19cv566, Dkt. No. 18 at 1 (E.D. Va.); Pini USA, Inc. v. Preferred Freezer Services of Norfolk, LLC, 2:19-cv-00499, Dkt. No. 27 at 1 (E.D.Va.).