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How long do I need to wait after my email to OC asking them to produce missing evidence before I file Motion to Compel?

Tampa, FL |

My former attorney asked OC for something important to the case months ago. I recently sent OC an email asking for same. How long must I wait before I file a Motion to Compel Production?

Attorney Answers 3

Posted

If your attorney filed a proper discovery request, they have thirty days to respond, unless they get an extension. If the discovery request was filed with the complaint, the response time allowed is 45 days. An email is not a proper discovery request and you cannot file a motion to compel based on an email request. However if the first request by your attorney was proper, your motion could allege the first request, a lapse of time assuming no extensions were granted, which would have been by correspondence between your attorney and their attorney, then your follow up email request with no response. Here is a link to the Florida Rules of procedure. These apply in state courts in Florida as set forth in the rules.

http://www.floridabar.org/tfb/TFBLegalRes.nsf/D64B801203BC919485256709006A561C/E1A89A0DC5248D1785256B2F006CCCEE?OpenDocument

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Jeffrey B. Lampert

Jeffrey B. Lampert

Posted

I think I like your answer better as being more complete and more restrained.

Heather Morcroft

Heather Morcroft

Posted

Thanks...sometimes it's hard to be awake that early:) You certainly gave a lot of practical how to tips which are very useful.

Posted

Short answer: 2 seconds.

Long Answer: Mail your Motion right away. Find out what the procedure is in your county to have the Motion heard.

Longer Answer: The rules of civil procedure provide for a 30-day window. Add 5 days if the request was mailed. Most counties have what is called a Uniform Motion Calendar, which means that setting a hearing does NOT require making an appointment with the judge's office. In my county, a minimum 5 business days notice must be given and a copy of the Notice of Hearing and Motion must be submitted to the judge's office. I suggest that you contact opposing counsel's office to "coordinate" the hearing, which is to say to see when are they available. In my county, UMC is conducted M-Thur for some divisions and Tue-Thur in others. Don't be surprised if the other attorney will not be available any time soon. Don't be surprised if your call is sent to voice mail and the call never returned. Then, send the attorney an email that says: I called your office on XYZ and ABC in an effort to coordinate a hearing. You have not returned my calls. Here are the 3 days I am considering setting the hearing. If I do not hear back from you by noon tomorrow as to which is clear on your calendar, I will choose from those dates at my discretion. Consider "opting in" to getting papers served on you by email. That avoids the situation where their certificate of service gives one date but the postmark on the envelope shows another. However, once you opt in, you must have the capacity to scan documents so that you too are serving them by email. Take a look at Rule 2.516 Rules of Judicial Administration for guidelines on what must be contained in the subject line and in the body of the email. Email service of pleadings is treated 100% like regular mail--there is the same 5 days for emailing as there was for US Postal Service.

Please excuse the informality of this response, but at 6:25am on a Saturday morning....

I hope you found this response to be helpful. If so, your clicking "helpful" and/or "best answer" helps my Avvo rating and would be appreciated. This answer shall not be considered rendering legal advise but instead a general response to a general question. Avvo is a wonderful resource but nothing can substitute for an in-depth consultation face-to-face with a lawyer. The response shall not be deemed to create an attorney-client relationship, nor shall it create an obligation on the part of the attorney to respond to further inquiry from the questioner.

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Posted

Heather's answer is sound.

No information provided in response to these questions can be relied upon in any way without further personally consulting with Attorney Kerrigan and Attorney Kerrigan consulting personally with you regarding your specific legal situation.

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