RULE 37. FAILURE TO MAKE OR COOPERATE IN DISCOVERY; SANCTIONS
(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.
(2) Motion. 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. The motion must include a certification that, in an effort to secure the information or material without court action, the movant made a good faith effort to confer or attempt to confer with the person or party that failed to make the discovery. While taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
(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.
(4) Expenses 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 to be heard, 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 making the motion, including attorney's fees, unless the court finds that the 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 to be heard, require the moving party or the attorney 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.
(b) Failure to Comply With Order.
(1) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the judicial district in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action is Pending. 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 to obey an order to provide or permit discovery, including an order made under subdivision (a) or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure that are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(E) If a party has failed to comply with an order under Rule 35(a) requiring the party to produce another person for examination, such orders as are listed in paragraphs (A), (B), and (C) unless the party failing to comply shows that that party is unable to produce the person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order 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.
(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 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 a pending motion for a protective order as provided by Rule 26(c).
(f) Expenses Against the State. Except to the extent permitted by statute, expenses and fees may not be awarded against the State of North Dakota under this rule.
(g) Failure to Participate in the Framing of a Discovery Plan. If a party or a party's attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
Rule 37 was amended, effective July 1, 1981; March 1, 1990; January 1, 1995; March 1, 1997; March 1, 2004.
Paragraph (a)(2) was amended, effective March 1, 2004, to require a party moving for a discovery order to certify that a good faith effort was made to resolve the discovery dispute prior to seeking court intervention.
SOURCES: Joint Procedure Committee Minutes of January 30-31, 2003, pages 15-16; 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; Fed.R.Civ.P. 37.
SUPERSEDED: N.D.R.C. §§ 31-0205, 31-0803 (1943).
CROSS REFERENCE: N.D.R.Civ.P. 26 (General Provisions Governing Discovery), N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P. 33 (Interrogatories to Parties), N.D.R.Civ.P. 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes), N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons), N.D.R.Civ.P. 36 (Requests for Admission) and N.D.R.Civ.P. 45 (Subpoena).