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Rule 37 – Failure to Make or Cooperate in Discovery: Sanctions.

May 14, 2021 | Civil Procedure, Rhode Island

(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 to a party may be made to the court in which the action is pending or, on matters relating to a deposition, in the county in which the deposition is being taken. This provision shall also apply to a deponent who is not a party.
(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 production or 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 production or inspection in accordance with the request. 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 the discovery in an effort to secure the information or material without court action. When 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 requested discovery is provided after the motion was filed, the court may, after affording an opportunity to be heard, 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 making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. An order compelling discovery may expressly provide for entry of a final judgment dismissing the underlying claim or entry of a default judgment against the nonmoving party if the order is not complied with within thirty (30) days or such shorter or longer time as the court may order or as the parties may stipulate.
(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and may, 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.
(D) Absent exceptional circumstances, the court may not impose sanctions on a party under these rules for failure to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
(b)Failure to Comply With Order.

(1)Contempt. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court, the refusal may be punished as a contempt of court.
(2)Other Consequences. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) to testify on behalf of a party fails or refuses to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court may make such orders and enter such judgment in regard to the failure or refusal as 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 the disobedient 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 a final judgment 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; and/or
(E) Where a party has failed to comply with an order under Rule 35(a) requiring the party to produce another for examination, such orders as are listed in subdivisions (A), (B), and (C) of this subdivision of this rule, unless the party failing to comply shows that the party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court may 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 Refusal to Admit. If a party fails to admit the genuineness of any documents or the truth of any matter as requested under Rule 36 and if 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 such proof, including reasonable attorney’s fees.

The court may make the order unless it finds that:

(1) The request was held objectionable pursuant to Rule 36(a);
(2) The admission sought was of no substantial importance;
(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, 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, or
(2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or
(3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request,

the court on motion may make such orders in regard to the failure as are just, and among others it the court may take any action authorized under subparagraph (A), (B) and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under cause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court may 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).

R.I. Super. Ct. R. Civ. P. 37

Amended November 6, 2017, effective November 6, 2017.