N.D.R.Civ.P.
RULE 37. FAILURE TO MAKE OR TO COOPERATE IN DISCOVERY; SANCTIONS
(a) Motion for an 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) 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.
(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) 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 must be made in the court where the discovery is or will be 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) 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:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
(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.
(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.
(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) 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.
(4) (5) Payment of Expenses; and
sanctions Protective Order.
(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.
(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;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) 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.
(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.
(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.
(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 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.
(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.
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;
(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;
(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.
(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.
(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.
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) 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) 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
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), 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 it 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 Party's Failure to Attend Its Own Deposition,
Serve
Answers to Interrogatories, or Respond to a 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.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
(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
(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.
(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.
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©.
(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).
(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 a party's its
attorney fails to participate in good faith in the framing of a developing and
submitting a
proposed discovery plan by agreement as is required by
Rule 26(f), the court may, after
giving an opportunity for hearing 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.
EXPLANATORY NOTE
Rule 37 was amended, effective July 1, 1981; March 1, 1990; January 1, 1995; March 1, 1997; March 1, 2004; March 1, 2008; __________________.
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 _______________, 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 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.
Statutes Affected:
Superseded: N.D.R.C. 1943 §§ 31-0205, 31-0803.
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).