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Ely
Ely, Counselor at Law
Category: Family Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have a divorce/custody trail on Aug. 15th. I represent myself

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I have a divorce/custody trail on Aug. 15th. I represent myself pro se. My question: The defendeant has not produced any discovery i.e. interrogatories or documents even though it was in two scheduling orders. What do I do? motion for sanctions motion for contempt or just go to court and see what happens?
Submitted: 3 years ago.
Category: Family Law
Expert:  Ely replied 3 years ago.
Hello,

Welcome to JustAnswer and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

Under Rule 37:

Before any motion to compel discovery is filed, the affected parties or counsel must meet for a reasonable period of
time in an effort to resolve the disputed matter. The movant shall accompany any motion to compel discovery with a
certification that despite a good faith effort to secure it, the discovery material sought has not been provided. This certification shall set forth specific facts describing the good faith effort, including a statement of the date, time and place of
the meeting required by this Rule, and shall be placed immediately below the signature of the attorney or party signing
the motion.

Therefore, if you have enough time to do this, you would have to do so before bringing a Motion to Compel (to enforce sanctions) and for Contempt.

If you go to Court as is, the Judge will simply say that you should have enforced the discovery via a compel/contempt motion, so it is too late. Therefore, if you wish to enforce it, I would recommend trying to do this ASAP, although it looks like you may not have enough time anymore - I am sorry.

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Customer: replied 3 years ago.
what case law would I cite that pertains to federal rule 37?
Expert:  Ely replied 3 years ago.
You do not need to cite case law, the statute IS the rule.

Think of the statutes as the brick unto which the foundation of law is built, and case law like the mortar that fills in the cracks - both are binding, but case law can be 'chipped away' at by argument, whereas the statute (bricks) are much harder to break.

So, simply site Rule 37:

http://www.dcsc.gov/dccourts/docs/SUPERIOR_COURT_RULES_OF_CIVIL_PROCEDURE_090707.pdf

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you until you actually press ACCEPT, even if you already have a subscription. If you still need to clarify something or seek more information, just use the REPLY button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after accepting, should you wish to continue in the thread, and I encourage you to do so should you desire clarification.
Customer: replied 3 years ago.
So I would simply state in my motion that the defendant has not complied with Rule 37 and therefore the court should sanction the defendant?

Of course I would attach the Cert. of Service you mentioned above. Would I be on the right track to advocate my position?
Expert:  Ely replied 3 years ago.
Essentially, you are correct. You would file said Motion to Compel and ask for enforcement and sanctions. You got it.

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you until you actually press ACCEPT, even if you already have a subscription. If you still need to clarify something or seek more information, just use the REPLY button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after accepting, should you wish to continue in the thread, and I encourage you to do so should you desire clarification.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87776
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you Eli.

I will keep your contact info as I may have a question as I draw up my motion. But, I believe I have the gist of it as a pro se.

Sincerely,
Gary
Expert:  Ely replied 3 years ago.
Gary,

Go get 'em.
Customer: replied 3 years ago.
The motion I'm preparing is a "Motion for Sanctions".

I'm asking the court to:

Sanction and hold the defendant in contempt of court.

I want the court to grant this request because:

Defendant's failure to comply with Discovery pursuant to Civil Rule of Procedure 37.

That's all I need along with the Cert. of Service Correct?
Expert:  Ely replied 3 years ago.
When you say Cert. of Service, do you mean a citation/summons, or just a verification that you've served the motion unto him?
Customer: replied 3 years ago.
I'm serving him by first class mail.

What I not clear on is, the certification, that I made a good faith effort. As defined in Rule 37 (2)(A)
Expert:  Ely replied 3 years ago.
Ah, I see. Yes, I am sorry, you should, and it is to be notarized.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87776
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Thanks again

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