Q: Motion for Protective order before or after Motion to Compel execution of authorization
Tradeoffs. Pros and Cons of each approach.
1. Filing Motion for protective order by plaintiff, in response to request to authorize release - before defendant files motion to compel.
2. Filing motion for protective order in response to motion to compel.
A:
Under California law, there are pros and cons to consider when deciding whether to file a motion for a protective order before or after the defendant files a motion to compel the execution of an authorization for the release of records. Here's an analysis of the two approaches:
1. Filing a motion for a protective order by the plaintiff in response to a request to authorize release, before the defendant files a motion to compel:
Pros:
a. Proactive approach: By filing the motion for a protective order first, the plaintiff takes a proactive stance in protecting their interests and preventing the disclosure of sensitive or irrelevant information.
b. Potentially avoiding a motion to compel: If the protective order is granted, the defendant may not need to file a motion to compel, saving time and resources for both parties.
c. Demonstrating good faith: Filing the motion for a protective order before the motion to compel shows the court that the plaintiff is acting in good faith and is willing to cooperate within reasonable limits.
Cons:
a. Lack of specificity: Without seeing the defendant's motion to compel, the plaintiff may not know the exact scope of the records being sought, making it more challenging to argue for a protective order.
b. Potential for additional costs: If the defendant still files a motion to compel after the protective order is denied, the plaintiff may incur additional legal costs in responding to the motion to compel.
2. Filing a motion for a protective order in response to a motion to compel:
Pros:
a. Targeted response: By waiting for the defendant to file a motion to compel, the plaintiff can tailor their motion for a protective order to address the specific records and arguments raised in the motion to compel.
b. Judicial guidance: If the motion to compel is granted in part, the court may provide guidance on the scope of the records to be released, which can inform the plaintiff's motion for a protective order.
c. Potential for compromise: Waiting for the motion to compel may allow the parties to negotiate a compromise on the scope of the records to be released, reducing the need for a protective order.
Cons:
a. Reactive approach: By waiting for the motion to compel, the plaintiff takes a reactive stance, potentially giving the impression that they are uncooperative or have something to hide.
b. Risk of broader disclosure: If the motion to compel is granted in full, the plaintiff may be required to disclose more records than they would have under a protective order.
c. Increased costs: Responding to a motion to compel and then filing a motion for a protective order may result in higher legal costs compared to filing the protective order first.
Ultimately, the decision to file a motion for a protective order before or after a motion to compel depends on the specific circumstances of the case, the sensitivity of the records at issue, and the plaintiff's overall legal strategy. Consulting with an experienced California attorney can help plaintiffs make an informed decision based on their unique situation.
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