Warner Robins, GA
Discovery only works if both sides answer. When the other side stonewalls, North Carolina lets you ask the judge to make them.
Also called: motion to compel discovery, Rule 37 motion
In an injury lawsuit, most of the evidence is gathered through discovery: written questions called interrogatories, requests for documents, and depositions. The rules expect each side to answer fully and on time. When one side does not, the other side’s main tool is a motion to compel.
Joshua E. Palmer, Attorney at Law uses discovery to pin down how a crash or fall happened, which matters a great deal in a state where any fault on the injured person’s part can end the claim. This page explains what a motion to compel is under North Carolina Rule 37, what you must do before filing one, what the court can order, and how the motion fits into a contributory negligence case.
It is a written motion asking the judge to order someone to do what the discovery rules already require. Typical targets are unanswered interrogatories, a refusal to produce documents or allow an inspection, and a witness at a deposition who will not answer a question. The motion identifies the request, the response (or the lack of one), and why the information is discoverable.
A motion to compel is not a punishment by itself. It asks for an order. Sanctions usually come later, if the other side ignores the order. That two-step structure gives everyone a chance to fix the problem before the court takes stronger action.
N.C. R. Civ. P. 37(a)(2) lists the situations: a deponent fails to answer a question asked at a deposition; a party fails to answer an interrogatory; or a party fails to respond that an inspection will be allowed, or fails to allow it, after a request for documents or inspection. In each case the discovering party may move for an order compelling the answer or the inspection.
Two details matter in practice. First, the motion must include a certification that the lawyer filing it conferred, or tried to confer, in good faith with the other side to get the information without going to court. Judges expect a real phone call or letter, not a formality. Second, the rule treats an evasive or incomplete answer as a failure to answer, so a response that technically says something but dodges the question can still be compelled.
| Discovery tool | Problem | What the motion asks for |
|---|---|---|
| Interrogatories | No answers, or answers like “see documents” with no detail | Complete, specific written answers under oath |
| Requests for documents | Refusal to produce phone records, video, or policies | An order to produce or permit inspection |
| Depositions | Witness refuses to answer a question | An order directing the witness to answer |
| Any of the above | Evasive or incomplete response | Treated as a failure to answer under Rule 37(a)(3) |
If the court denies the motion, it may enter a protective order instead. Judges have broad discretion over discovery disputes.
The judge enters an order requiring the answers or documents by a deadline. Under Rule 37(a)(4), if the motion is granted the court, after a chance for a hearing, shall require the party or deponent whose conduct made the motion necessary, or the lawyer who advised that conduct, or both, to pay the reasonable expenses of obtaining the order, including attorney’s fees. The exception is when the court finds the opposition was substantially justified or that other circumstances make an award unjust.
If a party then disobeys the order, Rule 37(b)(2) gives the court a range of sanctions. The judge may treat certain facts as established, bar the disobedient party from supporting a claim or defense or from offering certain evidence, strike pleadings, stay the case, dismiss the action, or enter a default judgment. Failure to obey can also be treated as contempt. These are serious consequences, and they are the reason most parties comply once an order is entered.
North Carolina is a pure contributory negligence state, and under N.C. Gen. Stat. § 1-139 the defendant who raises that defense has the burden of proving it. Both sides therefore fight hard over the facts of the crash: phone use, speed, lighting, maintenance records, dashcam or store video. When the defense withholds that kind of evidence, a motion to compel can be the difference between proving what really happened and arguing in the dark.
A worked example: a Durham shopper is hurt when a display falls. The store’s answers to interrogatories say only that it “inspects the aisles regularly,” and it refuses to produce its inspection logs or video. After a letter and a call go nowhere, the shopper’s lawyer files a motion to compel with the good-faith certification. The judge orders the logs and video produced within 20 days and awards the fees for the motion. The video shows the display leaning for an hour, which also answers the store’s argument that the shopper should have seen it. Requests run both ways, so expect the defense to ask for your records too, and answer them fully.
Joshua E. Palmer
Managing Partner · Joshua E. Palmer, Attorney at Law
Attorney Palmer concentrates in personal injury law and trained in North Carolina law at North Carolina Central University School of Law in Durham. This glossary explains the terms he uses with clients every day, in plain English and with the North Carolina rule that applies.
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Responsible attorney: Joshua E. Palmer, Managing Partner · 106 Moran Dr #5106, Bonaire, GA 31005 · (478) 887-3734. Attorney advertising. This page is general legal information about North Carolina law, not legal advice for your situation; contacting the firm does not create an attorney-client relationship.
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