Thinking of filing a Motion to Compel in the NC Business Court? You might want to file it before the close of the discovery period, even though there is no Business Court Rule establishing a deadline for doing so.

That's because there might be a "secret rule," based on Judge Robinson's (unpublished) Order last week in Carmayer LLC v. Koury Aviation.

Here was the situation: The parties were litigating over the Defendant's alleged misrepresentations as to its ability to rent out at a profit an airplane that it advised the Plaintiff to purchase. In discovery, the Plaintiff asked for financial information as to other aircraft rented out by the Defendant. The Defendant refused to provide the information.

The Plaintiff initiated a discovery dispute to the Business Court per new BCR 10.9 in January 2017. In February, Judge Robinson indicated that the requested financial information seemed to be relevant and within the scope of discovery. Although he did not issue a formal ruling per BCR 10.9(b) (which he wasn't required to do), he stated that he would be likely to grant a Motion to Compel if one were filed.

The discovery period ended a week later, on February 15, 2017. Five weeks later, the Plaintiff filed a Motion to Compel production of the financial information.

There is neither a Business Court Rule nor an NC Rule of Civil Procedure prohibiting the filing of a Motion to Compel after the discovery period is over.

Likewise, as Judge Robinson observed: "the North Carolina appellate courts have not established a bright-line rule governing the propriety of motions to compel filed after the close of discovery." Op. ¶16.

Federal courts, on the other hand, take the position that "[g]enerally, in order for a motion to compel to be timely, it must be filed before the end of discovery." Op. ¶17. Judge Robinson cited two opinions from North Carolina district courts questioning or denying motions to compel filed at the end of the discovery period or after it. PCS Phosphate Co., Inc., v. Norfolk Southern Corp., 238 F.R.D. 555, 558 (E.D.N.C. 2006); Greene v. Swain Cty. P'ship for Health, 342 F. Supp. 442, 449 (W.D.N.C. 2004).

It's not always possible to file a Motion to Compel before the close of discovery. What about the opposing attorney improperly instructing her witness, at a deposition taken on the last day of discovery, to refuse to answer a question? Or an inadequate response to written discovery served at the very end of the discovery period?

There are exceptions to every rule, even those that might be "secret." Federal courts look to a variety of factors when deciding whether to exercise their discretion to rule on a motion to compel filed after the end of discovery. The case relied on by Judge Robinson, Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 397-98 (N.D. Tex. 2006)(Op. ¶18), put those factors as follows:

(1) the length of time since the expiration of the deadline, (2) the length of time that the moving party has known about the discovery, (3) whether the discovery deadline has been extended, (4) the explanation for the tardiness or delay, (5) whether dispositive motions have been scheduled or filed, (7) the age of the case, (8) any prejudice to the party from whom late discovery was sought, and (9) disruption of the court's schedule.

Id. 397-98.

Considering those factors, Judge Robinson ruled the Motion to Compel to be untimely and refused to consider it. He noted that:

  1. The Motion was filed five weeks after the close of discovery.
  2. It was filed roughly ten months after the Defendant initially objected to the discovery request and when Plaintiff therefore was aware of the Defendant's unwillingness to produce the requested financial information.
  3. The Plaintiff failed to file its Motion immediately, but waited weeks after knowing of the Court's position on the discovery. There was not an adequate explanation for its delay.
  4. The Motion was filed after the Defendant had filed a Motion for Summary Judgment, which would "disrupt the schedule of [the] litigation."

Op. ¶22.

Despite my reference to a "secret rule," there is no indication in Judge Robinson's Order that this is a rule that will control in other cases before him or whether it will be applied by the other Business Court Judges. And, if Judge Robinson had wanted to send a message to lawyers practicing in the Business Court. he probably would have published the Order. Nevertheless, it's safer not to wait until after discovery has ended to file a Motion to Compel. Unless you can't avoid it.