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Rule 1.517 – Consequences of failure to make disclosures or discovery

May 13, 2021 | Civil Procedure, Iowa

1. 517(1)Motion for order compelling disclosures or discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may move for an order compelling disclosure or discovery as follows:

a. Appropriate court. A motion for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. A motion for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.
b. Specific motions.

(1)To compel disclosure. If a party fails to make a disclosure required by rule 1.500, any other party may move to compel disclosure and for appropriate sanctions.
(2)To compel a discovery response. If a deponent fails to answer a question propounded or submitted under rule 1.701 or 1.710, or a corporation or other entity fails to make a designation under rule 1.707(5), or a party fails to answer an interrogatory submitted under rule 1.509, or if a party, in response to a request for inspection submitted under rule 1.512, fails to produce documents, or fails to respond that inspection will be permitted, or fails to permit inspection, the party seeking discovery may move for an order compelling an answer, a designation, or an inspection in accordance with the request.
(3)Related to a deposition. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before moving for an order.
(4)Default; notice; protective orders. If a motion to compel is filed and the time for resistance of that motion has expired without a resistance having been filed, the court may grant the motion without a hearing.
(5)Sanctions. Any order granting a motion made under this rule shall include a statement that a failure to comply with the order may result in the imposition of sanctions pursuant to rule 1.517.
(6)Protective order. In ruling on such motion, the court may make such protective order as it would have been empowered to make on a motion pursuant to rule 1.504(1).
c. Evasive or incomplete answer. For purposes of this rule an evasive or incomplete answer is to be treated as a failure to answer.
d. Award of expenses of motion.

(1) If the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(2) If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising 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.
(3) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
e. Notice to litigants. If the motion is granted, the court shall direct the clerk to serve a copy of the order to counsel and to the party or parties whose conduct, individually or by counsel, necessitated the motion.
1. 517(2)Failure to comply with order.

a. 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 district in which the deposition is being taken, the failure may be considered a contempt of that court.
b. Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under rule 1.707(5) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under rule 1.515 or rule 1.517(1), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(1) 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.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing designated matters in evidence.
(3) 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.
(4) 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.
(5) In lieu of any of the foregoing orders or in addition thereto, the court shall require the disobedient party or the attorney advising such 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. 517(3)Failure to disclose, to supplement an earlier response, or to admit.

a. Failure to disclose or supplement. If a party fails to provide information or identify a witness as required by rule 1.500, 1.503(4), or 1.508(3), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion or after giving an opportunity to be heard:

(1) May order payment of the reasonable expenses, including attorney’s fees, caused by the failure.
(2) May inform the jury of the party’s failure.
(3) May impose other appropriate sanctions, including any of the orders listed in rule 1.517(2)(b).
b. 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 1.510, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may move 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 any of the following:

(1) The request was held objectionable pursuant to rule 1.510.
(2) The admission sought was of no substantial importance.
(3) The party failing to admit had reasonable grounds to believe that the party might prevail on the matter.
(4) There was other good reason for the failure to admit.
1. 517(4)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, or managing agent of a party or a person designated under rule 1.707(5) to testify on behalf of a party fails:

a. To appear before the officer who is to take the person’s deposition, after being served with a proper notice; or
b. To serve answers or objections to interrogatories submitted under rule 1.509, after proper service of the interrogatories; or
c. To serve a written response to a request for inspection submitted under rule 1.512, 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 rule 1.517(2)(b)(1),(2),(3) and (5).
d. The failure to act described in rule 1.517(4) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by rule 1.504.
1. 517(5)Motions relating to discovery. No motion relating to depositions, discovery, or discovery sanctions may be filed with the clerk or considered by the court unless the motion alleges that the movant has in good faith personally spoken with or attempted to speak with other affected parties in an effort to resolve the dispute without court action. The certification must identify the date and time of any conference or attempts to confer.
1. 517(6)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.
1. 517(7)Failure to participate in framing 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 1.507, 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 fees, that the failure causes.

Iowa. R. Civ. P. 1.517

Report 1943; amendment 1957; amendment 1973; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002; February 14, 2008, effective May 1, 2008; August 28, 2014, effective January 1, 2015.

COMMENT: Rule 1.517(1)(b) requires that any order granting a motion to compel discovery shall warn of the possibility of sanctions, and rule 1.517(1)(e) requires that such an order shall be mailed by the clerk to both the attorney and client.