RULE 37. FAILURE TO MAKE OR COOPERATE IN DISCOVERY; SANCTIONS
Effective Date: 3/1/2011
(a) Motion for an Order Compelling Discovery.
(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty may be made in the court where the discovery is or will be taken or in the court where the action is pending.
(3) Specific Motions.(A) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:(4) Evasive or Incomplete Answer or Response. For purposes of this subdivision (a), an evasive or incomplete answer or response must be treated as a failure to answer or respond.(i) a deponent fails to answer a question asked under Rule 30 or 31;(B) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a);
(iii) a party fails to answer an interrogatory submitted under Rule 33; or
(iv) a party fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Rule 34.
(5) Payment of Expenses; Protective Order.(A) If the Motion Is Granted (or Discovery Is Provided After Filing). If the motion is granted—or if the requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:(i) the movant filed the motion before attempting in good faith to obtain discovery without court action;(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
(b) Failure to Comply With a Court Order.
(1) Sanctions in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.
(2) Sanctions by the Court in Which the Action Is Pending.(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent - or a witness designated under Rule 30(b)(6) or 31(a) - fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(c) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(1) the request was held objectionable under Rule 36(a);
(2) the admission sought was of no substantial importance;
(3) the party failing to admit had reasonable ground to believe that it might prevail on the matter; or
(4) there was other good reason for the failure to admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
(1) In General.(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).(i) a party or a party's officer, director, or managing agent - or a person designated under Rule 30(b)(6) or 31(a) - fails, after being served with proper notice, to appear for that person's deposition; or(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(e) 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.
(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
(g) Failure to Participate in the Framing of a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, 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; March 1, 2008; March 1, 2011.
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.
Rule 37 was amended, effective March 1, 2008, in response to the 2006 federal revision. A new subdivision (f) on electronically stored information was added and material dealing with expenses against the state was moved to subdivision (e).
Rule 37 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of January 29-30, 2009, pages 31-32; January 25, 2007, page 10; September 28-29, 2006, pages 22-25; 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.
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).