Discovery! I know what you’re thinking. Whoopee! Most attorneys and judges alike love talking about it. At the water fountain, the gym, football games, hair salons and barbershops, and holiday gatherings. Everyone revels in the opportunity to chat up the differences between State Section 2026 and Federal Rule 26, mull the joyful meaning of a “good faith” conference, and ponder whether it’s more proper to say “Requests” or “Request” for Admissions. What fun!

Not!

In fact judges may prefer to order attorneys in a discovery dispute to engage in a duel of death. And lawyers may sometimes feel like that’s a viable option.
All kidding aside, many hate discovery. Nonetheless, ‘tis the season for New Year’s resolutions. Why not ponder whether the Oklahoma could benefit from a couple of tweaks to its Discovery Code? (Abandon all hope, ye who read further.)

There are two subjects of considerations in this offing: (1) a 45-day limitation on making motions to compel; and (2) the mysterious “separate statement” to be attached to any motion to compel written discovery, both of which are used in the jurisprudence of the State of California.

A party seeking supplemental responses to the likes of Interrogatories or a set of Request for production must engage in a good faith conference and make a motion to compel within forty-five (45) days of service of the offending written responses. Failure to do so triggers a jurisdictional limitation on the trial court, which means that the moving party is out of luck. The trial Court simply has no authority to grant an extension of time to the out-of-time party.

Imagine the profound effect such a rule has on expediting cases through discovery towards resolution. Parties must raise discovery issues sooner than later, and failure to do so can result in greater pressure to settle, depending on the circumstances. A down-side may be that parties are pressured to bring disputes to the court, even when discovery can be had from other sources such as depositions, leading to more filed motions. Hmm. We can imagine what to talk about at the next Thunder game.

California also requires parties moving to compel further responses to written discovery to attach what is known as a “separate statement,” which is a single document that includes a verbatim recital of (1) each separate discovery request, (2) the response, (3) and all arguments and authorities for compelling further responses. The responding party must also prepare and file a “separate statement” in the same form, with (4) an added category of all arguments and authorizes for denying the motion to compel.

As such, the separate statement attached to the responsive brief is the key document reviewed by the trial court in consideration of the motion. Some benefits to separate statement may include: the judge may review a single document in making her or his ruling, instead of flipping back and forth between the pages of the moving brief, the responsive brief, and the other discovery requests and responses, typically attached as separate documents in Oklahoma State jurisprudence.

True, Oklahoma already requires briefs to include the subject discovery requests. But for the most part, it’s often impossible to list all request, responses, arguments, etc., without exceeding the page limitation on briefs. Indeed, a con to this separate statement instrument may be that it results in an often voluminous motions, including the brief, separate statement, and attachments, filed and processed by the court clerk and judges. On the other hand, moving parties must ask themselves whether their motion to compel is really wroth such an effort.

Yes, such fun to think about!