Rule 1-037.Failure to make discovery; sanctions
Last amended May 15, 2009 · Last verified June 26, 2026
Full Text of Rule 1-037
Rule History
[As amended, effective October 15, 1986; August 1, 1988; August 1, 1989; January 1, 1998; as amended by Supreme Court Order No. 09-8300-007, effective May 15, 2009.]
Committee Commentary
Committee commentary for 2009 amendments. —
A number of amendments to the Rules of Civil Procedure for the District Courts were approved in 2009 to incorporate provisions from the Federal Rules of Civil Procedure addressing the discovery of electronically stored information. See the 2009 committee commentary to Rule 1-026 NMRA for additional information. However, one difference between the New Mexico and federal rules pertaining to electronic discovery is the omission of that portion of Federal Rule 37(f) commonly referred to as the “safe harbor” provision, which provides:
(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.
The committee is of the view that nothing in the nature of the discovery of electronically stored information requires curtailment of the existing discretion of the district court to determine an appropriate sanction for violation of discovery rules. But even without inclusion of the federal “safe harbor” provision, the committee is of the view that New Mexico’s civil discovery rules should not treat the routine, good-faith purging of electronic files any differently than the good-faith, routine destruction of paper files according to an established records retention schedule. The destruction of electronic information pursuant to the routine, good-faith operation of an electronic information system is, of course, something the district court can take into account when considering a request for discovery sanctions. However, regardless of the form of information sought within the context of discovery, a bad faith approach to discovery warrants the imposition of sanctions. See United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 241, 629 P.2d 231, 317 (1980)(“When a party has displayed a willful, bad faith approach to discovery, it is not only proper, but imperative, that severe sanctions be imposed to preserve the integrity of the judicial process and the due process rights of the other litigants.”). Indeed, even under the federal safe harbor provision, one may be sanctioned for the bad faith destruction of electronically stored information.
[Adopted by Supreme Court Order No. 09-8300-007, effective May 15, 2009.]
Plain-English Summary
This rule enforces the discovery rules. A party may move to compel when a deponent will not answer, an organization will not designate a witness, or a party fails to answer interrogatories or respond to a production request; an evasive or incomplete answer counts as a failure. A motion to compel must state that counsel made a good-faith effort to resolve the dispute. If the motion is granted, the court ordinarily awards the moving party its reasonable expenses, including attorney fees; if denied, it awards them to the opponent, unless the position was substantially justified.
Disobeying a discovery order brings stronger medicine. The court may treat facts as established, bar claims or defenses, strike pleadings, stay proceedings, dismiss the action, or enter default against the disobedient party, and may hold a party in contempt (except for refusing a physical or mental examination). It also ordinarily orders payment of the expenses caused by the failure. The rule separately allows expense awards for failing to admit something later proved, and sanctions for a party who fails to attend its own deposition, answer interrogatories, or respond to a production request. As the committee commentary notes, New Mexico deliberately omitted the federal “safe harbor” for lost electronic information.
Frequently Asked Questions
What must a motion to compel include?
A statement that counsel made a good-faith effort to resolve the issue with opposing counsel, and the interrogatory, request, or response at issue.
What sanctions can a court impose for disobeying a discovery order?
Taking facts as established, barring claims or defenses, striking pleadings, staying proceedings, dismissing the action, entering default, holding the party in contempt, and ordering payment of the expenses caused by the failure.
Who pays expenses on a motion to compel?
If the motion is granted, the losing party ordinarily pays the movant’s reasonable expenses and attorney fees; if denied, the movant pays the opponent’s—unless the position was substantially justified or an award would be unjust.