Motion to Compel Production of Documents in Vermont

Understanding the Purpose and Significance of a Motion to Compel Production of Documents

“The very purposes of discovery [is] to allow the parties to become fully informed about the essential nature of the case prior to trial.” (See Mintz v. Matalon (1987) 148 Vt. 442, 445.)

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” (See Mattison v. Poulen (1976) 134 Vt. 158, 162.)

“It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (See id.)

Procedural Steps Involved in Filing a Motion to Compel Production of Documents

“Rule 26 outlines the general provisions that govern discovery.” (See Trevor v. Icon Legacy Custom Modular Homes, LLC (2019) 217 A.3d 496, 509.)

“Rule 26(e) creates an ongoing duty to supplement all discovery responses: A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement or correct the response to include information thereafter acquired with respect to the following matters if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing:



(2) Any other prior response to an interrogatory, request for production, or request for admission;



(3) Any matter by order of any superior judge, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.”

(See Trevor v. Icon Legacy Custom Modular Homes, LLC (2019) 217 A.3d 496, 509.)

“Rule 26(g) then requires that [e]very request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney and states that such a signature constitutes a certification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry it is made in conformity with the Vermont Rules of Civil Procedure, not interposed for any improper purpose, and is not unreasonable or unduly burdensome or expensive.” (See id.)

“Vermont Rule of Civil Procedure 37 sets forth a process for parties to follow to secure responses when requests to produce are incomplete.” (See V.R.C.P. 37(a)(2), (3) [directing that where party provides incomplete answer to request to produce, discovering party may move for order compelling production]; see also Town of Colchester v. Andres, SUPREME COURT No. 2018-219, at *2 (Vt. Nov. 21, 2018).)

“If a party fails to comply with a resulting order, the court may then impose sanctions.” (See id.)

“Only when there has been a failure to comply with a specific discovery order would sanctions such as witness preclusion be appropriate." (See id.)

Discretion of the Court in Deciding a Motion to Compel Production of Documents

“Trial courts have broad discretion with respect to discovery matters.” (See Ley v. Dall (1988) 150 Vt. 383, 386.)

“This Court will not disturb a trial court's discovery ruling absent an abuse of discretion.” (See Pcolar v. Casella Waste Sys., Inc. (2012) 59 A.3d 702, 707.)

“Thus, we will not disturb the court's determination unless its exercise of discretion was on grounds or for reasons clearly untenable, or the exercise of discretion was to a clearly unreasonable extent.” (See Meyer v. Meyer (2001) 173 Vt. 195, 197.)

Legal Precedents and Case Law on a Motion to Compel Production of Documents

It is well settled that “under Rule 34(a), a party may request that another party produce documents only if they are in the possession, custody or control of the party upon whom the request is served.” (See Rathe Salvage, Inc. v. R. Brown Sons, Inc. (2008) 184 Vt. 355, 361.)

It is also well settled that the court has “determined that the phrase ‘possession, custody or control’ should be construed in conformance with the policy of liberal discovery and the practical realities of the particular situation at issue.” (See id.)