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TexLaw
TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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This is a Federal Case. In our Rule 26(f) conference, all parties

Resolved Question:

This is a Federal Case. In our Rule 26(f) conference, all parties stipulated to being allowed service by email.
I propounded discovery on the defendant on October 2. As of November 3, they have not responded. I emailed today, on the 3rd, inquiring as to why they had not responded. The defendant replied that they did not waive their three day allowance.
Are they allowed the three day allowance, when they accepted email service?
This also means their response is due Sunday.
If they don't respond on Sunday, will I have any recourse? I know that I can file a motion to compel, but if they answer on Monday, will I appear stupid or petty? If they answer on Tuesday? Clearly they are being jerks. What is my recourse as a pro se plaintiff against two law firms with representing attorneys having over 50 years experience between them? (One is Pro hac vice because they're afraid of little ol' me.)
Submitted: 4 years ago.
Category: Legal
Expert:  TexLaw replied 4 years ago.
Hi,

Thank you for your question.

The federal rules allow an additional 3 days to answer discovery when there is service by fax or email unless otherwise agreed between the parties. When the due date falls on a weekend, the answers become due on the next monday. When the due date falls on a holiday, the answers become due on the next business day.

One of the first things to remember when conducting discovery in a federal case is that you must use your best efforts to resolve any discovery dispute before seeking court intervention. In this case, if you file a motion to compel without waiting for the answers, not only will this make you look bad, you may be sanctioned for not attempting to work out the dispute. The best practice is to wait at least 5 days after the due date before accusing the other side of failing to answer discovery requests. That allows there to be time for the discovery responses to be received in the mail by you if that is how the other side chooses to send you their responses. If they have not emailed their responses to you by that time, or have not post marked them by the due date, then they waive their objections. However, you need to call them and demand answers if you haven't received them before filing a motion to compel.

Please let me know if you have any further questions on this subject and good luck.

-ZDN
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