RULE 37. FAILURE TO MAKE OR COOPERATE IN
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order may be made to the court in which the action is pending or alternatively, on matters relating to a deposition, to the court in the district where the deposition is being taken.
If a deponent fails to answer a question propounded or submitted under Rules 30 and 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. While taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).
(3) Evasive or Incomplete Answer, or Response. For purposes of this subdivision an evasive or incomplete answer, or response is to be treated as a failure to answer, or respond.
Award of Expenses of Motion and Sanctions.
(A) If the motion is granted or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity
for hearing, to be heard, shall require the party or deponent whose conduct necessitated the motion or the party or attorney advising the conduct, or both of them, to pay to the moving party the reasonable expenses incurred in obtaining the order making the motion, including attorney's fees, unless the court finds that the opposition to the motion opposing party's response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity
for hearing to be heard, require the moving party or the attorney advising filing the motion, or both of them, to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
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(c) Expenses on Failure to Admit.
If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that
(1) the request was held objectionable
pursuant to under Rule 36(a), or
(2) the admission sought was of no substantial importance, or
(3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or
(4) there was other good reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, superintendent, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails:
(1) to appear before the officer who is to take the deposition, after being served with a proper notice;
(2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories;
(3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request,
the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B) and (C) of subdivision (b)(2). In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has
applied a pending motion for a protective order as provided by Rule 26(c).
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Rule 37 was amended, effective July 1, 1981; March 1, 1990; January 1, 1995; ______________.
Rule 37 is identical to Rule 37, FRCivP, except for style changes and a minor change to conform to our system. In subdivision (f), State of North Dakota is substituted for United States. The rule encourages the imposition of sanctions in cases in which there has been an abuse of discovery rules. Rule 37 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended. Subdivision (b)(2) was amended, effective January 1, 1995, to provide that either the court where the action is pending, or the court in the district where the deposition is being taken, may issue an order regarding a deposition.
SOURCES: Procedure Committee Minutes of September 28-29, 1995, pages 15-16; January 27-28, 1994, pages 16-17; April 20, 1989, page 2; December 3, 1987, page 11; December 11-12, 1980, page 3; October 30-31, 1980, pages 22-26; November 29-30, 1979, page 80; Rule 37, FRCivP.
SUPERSEDED: Sections 31 0205, 31 0803, NDRC 1943.
CROSS REFERENCE: Rules 26 (General Provisions Governing Discovery), 30 (Depositions Upon Oral Examination), 31 (Depositions of Witnesses Upon Written Questions), 33 (Interrogatories to Parties), 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes), 35 (Physical and Mental Examination of Persons), 36 (Requests for Admission) and 45 (Subpoena), NDRCivP.